ING Bank (Australia) Limited

[2014] FWCA 2447

[2014] FWCA 2447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

ING Bank (Australia) Limited
(AG2014/695)

ING BANK (AUSTRALIA) LIMITED ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 APRIL 2014

Application for approval of the ING Bank (Australia) Limited Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by ING Bank (Australia) Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the ING Bank (Australia) Limited Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and two non-Union Employee Bargaining Representatives. The Agreement is to cover 964 employees who are engaged in the provision of banking services Australia wide. It does not cover Senior Managers, Executives or Directors of ING Direct. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 21 October 2013, and voting for the Agreement’s approval took place on 5 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by an independent third party, 403 of the 470 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Hansen, HR Manager, identified the Banking, Finance and Insurance Award 2010 [MA000019] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Hansensaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including an expanded span of ordinary hours, the ability for employees with more than six weeks accrued annual leave to be directed to take annual leave and less generous higher duties, meal and travel allowances. However, the Agreement also provides for a wide range of terms and conditions that are in excess of, or more beneficial than those under the Modern Award, including higher rates of pay, enhanced personal and compassionate leave entitlements and more generous paid parental leave entitlements. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 26 and 23 respectively, and a disputes resolution procedure at clause 25 provides for conciliation by the Commission.

[4] At a hearing of the application on 10 April 2014, Mr A Fry, Solicitor,appeared with Ms Z Rohrer, Ms C McConnell, Ms N Nicholson and Ms M Hogan for the applicant and Ms A Clancy for the Union. Mr M McIlwain appeared in his capacity as an Employee Bargaining Representative. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Fry outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the rates of pay for Levels 1-3 are 15% higher than those under the Modern Award and that those for Levels 4-6 are 25% higher than those under the Modern Award. These differentials would be maintained whenever the Commission’s Minimum Wage Review Decision varied the Modern Award’s wage rates. Ms Clancy and Mr McIlwain supported the submissions of Mr Fry and indicated that they were happy with the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the ING Bank (Australia) Limited Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 17 April 2014 and have a nominal expiry date of 17 April 2017.

DEPUTY PRESIDENT

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