Lakeside Pakenham Community Enterprise Limited

[2013] FWCA 6716

[2013] FWCA 6716

FAIR WORK COMMISSION

DECISION

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

Lakeside Pakenham Community Enterprise Limited
(AG2013/2486)

LAKESIDE PAKENHAM COMMUNITY ENTERPRISE LIMITED ENTERPRISE AGREEMENT 2012

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 SEPTEMBER 2013

Application for approval of the Lakeside Pakenham Community Enterprise Limited Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lakeside Pakenham 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 Lakeside Pakenham Community Enterprise Limited Enterprise Agreement 2012 (the ‘Agreement’). The Agreement was negotiated an Employee Bargaining Representative, Ms L Broberg. The Agreement is to cover 4 employees who are employed at the applicant’s community banking franchise, commonly known as Bendigo Bank, in Pakenham, Victoria.

[2] The employees were last notified of their representational rights on 22 July 2013, and voting for the Agreement’s approval took place on 12 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 3 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Wilson, 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 Wilsonsaid that the Agreement does provide a term that is less beneficial than under the Modern Award, being payment at the ordinary base rate where an employee works for five consecutive days in a higher duties position, rather than four. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the Modern Award, including higher rates of pay, proportionately higher junior rates of pay, a meal allowance where an employee works for more than ten hours and finishes after 6:30pm and more generous severance pay entitlements. 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 25 provides for mediation and arbitration by independent third parties.

[4] At a hearing of the application on 3 September 2013, Mr D Villani,appeared for the applicant and Ms L Broberg in her capacity as Employee Bargaining Representative. 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 explained that clause 8.4 of the Agreement set out that wage increases were subject to the performance of the company and of the individual concerned. He said that, historically, Bendigo and Adelaide Bank communicates with its franchised Community Banks when it increases salaries for its own employees, every twelve months. While Bendigo and Adelaide Bank could not force the board of the applicant to pass on this increase, he noted that the applicant had done so in the past. Cl 8.5 of the Agreement provided that the employees’ rates of pay could not fall under statutory minimum entitlements. Ms Broberg said that the employees were happy with the Agreement and supported the submissions Mr Villani.

[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 Lakeside Pakenham Community Enterprise Limited Enterprise Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 10 September 2013 and have a nominal expiry date of 9 September 2017.

DEPUTY PRESIDENT

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