LUCRF Pty Ltd

[2015] FWCA 1399

[2015] FWCA 1399

FAIR WORK COMMISSION

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

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