Katoomba and Upper Blue Mountains Community Enterprise Limited

[2013] FWCA 5616

[2013] FWCA 5616

FAIR WORK COMMISSION

DECISION

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

Katoomba and Upper Blue Mountains Community Enterprise Limited
(AG2013/2114)

KATOOMBA AND UPPER BLUE MOUNTAINS COMMUNITY ENTERPRISE LIMITED ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 AUGUST 2013

Application for approval of the Katoomba and Upper Blue Mountains Community Enterprise Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Katoomba and Upper Blue Mountains Community Enterprise Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Katoomba and Upper Blue Mountains Community Enterprise Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Ms E Logue. The Agreement is to cover 4 employees who are engaged in clerical positions at the applicant’s community banking franchise, commonly known as Bendigo Bank, in Katoomba, New South Wales. 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 26 November 2012, and voting for the Agreement’s approval took place on 17 and 18 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 4 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Broughton, Acting Chairman 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’). Mr Broughtonsaid that the Agreement does provide a term that is less beneficial than that under the Modern Award in that employees are paid for ordinary hours worked at the minimum rate of a higher position, where the employee works in that position for five days, rather than four days as under the Modern Award. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Modern Award, including higher base rates of pay, proportionately higher junior rates of pay, a meal allowance of $20.00 where an employee works more than ten hours in one day and finishes after 6:30pm, five days paid bereavement leave and severance entitlements in excess of those under the NES. Rates of pay are to be increased by 3.5% on 4 December 2013. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 23 respectively, and a disputes resolution procedure at clause 24 provides for mediation and arbitration by an independent third party.

[4] At a hearing of the application on 5 August 2013, Mr D Villani, IR Consultant, Bendigo and Adelaide Bank, appeared for the applicant. While Ms E Logue did not appear in her capacity as Employee Bargaining Representative, she had sent advice to the Commission indicating that she supported the approval of the Agreement. Mr Villani 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 submitted that it was the general practice of Community Bank franchises to ‘pass on’ increases to its employees that were provided to employees of Bendigo and Adelaide Bank under their own enterprise agreement. The last increase under that Agreement is due on 4 December 2014 and further increases will be negotiated in the future. These increases should ordinarily flow to the employees covered by this Agreement.

[5] Having heard the applicant’s 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 Katoomba and Upper Blue Mountains Community Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 12 August 2013 and have a nominal expiry date of 11 August 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE403034  PR540102>