DECISION

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

LUCRF Pty Ltd
(AG2015/92)

LUCRF SUPER BUSINESS DEVELOPMENT MANAGERS AND FIELD STAFF/ NATIONAL UNION OF WORKERS CERTIFIED AGREEMENT 2014- 2017

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 MARCH 2015

Application for approval of the LUCRF Super Business Development Managers and Field Staff/ National Union of Workers Certified Agreement 2014- 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by LUCRF Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the LUCRF Business Development Managers and Field Staff/ National Union of Workers Certified Agreement 2014- 2017 (the ‘Agreement’). The Agreement was negotiated with the National Union of Workers (the ‘Union’) and is to cover 13 employees who are employed as Business Development Managers. I note that other professional and administrative staff of the applicant are covered by another enterprise agreement. 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 30 June 2014, and voting for the Agreement’s approval took place between 11 and 18 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 8 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 January 2015. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for lodgement to 20 January 2015.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Maiolo, HR Manager, identified the Banking, Finance and Insurance Award 2010 [MA000019] and the Labour Union Insurance and Superannuation Employees Award 2002 [AP814204] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Maiolo said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, in that the Agreement does not provide for penalty rates for work performed on weekends or public holidays or for overtime rates of pay. However, these benefits have been ‘loaded’ into a higher rate of pay. The Agreement also provides for a 35 hour working week, increased annual leave loading and enhanced severance entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 23 and 5 respectively, and a disputes resolution procedure at clause 19 erroneously refers to the Australian Industrial Relations Commission, which I take as providing for conciliation and arbitration by the Commission.

[4] At hearings of the application on 5 and 26 February 2015, Ms A Maiolo appeared for the applicant and Mr P Richardson for the Union. At the hearing on 5 February 2015, the parties sought an adjournment to consider the effect of cl 26.4, which deals with an entitlement of honorary Officials of the Union to additional leave in certain circumstances. At the hearing of 26 February 2015, Ms Maiolo and Mr Richardson 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. It was explained that, after consultation with the employees, it was intended that the parties would seek to formally vary the Agreement in relation to cl 26.4, after the Agreement has been approved. I note the parties’ consent arrangement in that respect. 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.

[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 LUCRF Super Business Development Managers and Field Staff/ National Union of Workers Certified Agreement 2014- 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 5 March 2015 and have a nominal expiry date of 31 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved an application by LUCRF Pty Ltd, seeking approval of the LUCRF Super Business Development Managers and Field Staff/ National Union of Workers Certified Agreement 2014-2017. The application was made under the Fair Work Act 2009, which mandates that any certified agreement must be approved by a court to be valid and enforceable. The nature of the dispute revolved around the terms of the proposed agreement and whether it met the requirements of the Fair Work Act.

The legal issues the court needed to address included whether the agreement contained the mandatory provisions required by the Fair Work Act, and whether the agreement had been made in good faith and without coercion. Additionally, the court had to consider whether the agreement was in the best interests of the employees and if it provided adequate protection and benefits. The court also had to determine whether there was sufficient evidence that the agreement had been properly certified and that the necessary procedures had been followed.

The court found that the proposed agreement met all the legal requirements under the Fair Work Act. It contained all the mandatory provisions and had been made in good faith without any coercion. The court was satisfied that the agreement provided adequate protection and benefits to the employees and was in their best interests. The court also confirmed that the agreement had been properly certified and that all necessary procedures had been followed. Consequently, the court approved the agreement, allowing it to become a legally binding contract between LUCRF Pty Ltd and the National Union of Workers.

The final orders of the court were that the LUCRF Super Business Development Managers and Field Staff/ National Union of Workers Certified Agreement 2014-2017 be and was approved. The agreement was deemed to be a valid and enforceable contract between the parties, effective from the date of the court's approval. The court's decision provided certainty and legal clarity for both the employer and the employees involved, ensuring that the terms of the agreement could be implemented without further legal challenges.

LUCRF Pty Ltd

DECISION

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