Macquarie Bank Limited T/A Macquarie

[2022] FWC 2698

[2022] FWC 2698

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Macquarie Bank Limited T/A Macquarie

(AM2022/27)

Banking finance and insurance industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 11 OCTOBER 2022

Application to vary the Banking, Finance and Insurance Award 2020 – exemption rates for classification levels 5 and 6 – background paper – request for submissions – matter listed for conference.

1. On 26 August 2022, Macquarie Bank Limited t/a Macquarie (Macquarie) made an application to vary the Banking, Finance and Insurance Award 2020 (the BFI Award 2020)[1] (the Application) pursuant to s.158 of the Fair Work Act 2009 (the FW Act). An amended application was lodged on 19 September 2022.

1. The amended application (the Application) seeks to simplify the pay arrangements for employees who fall into the two most senior classifications in the BFI Award, being classification Levels 5 and 6, by introducing exemption rates of pay.

1. Specifically, Macquarie proposes the insertion of ‘Schedule 1 – Specific Enterprise Arrangements’ as follows:

‘1. Schedule I—Specific Enterprise Arrangements as follows:

Schedule I—Specific Enterprise Arrangements

1.1      Preamble

1.1.1    The purpose of Schedule I is to vary the application of certain terms of this award for specified employers and employees.

1.2      Application

1.2.1    Schedule I applies to any employee of Macquarie Bank Limited or any of its related bodies corporate who:

(a) is classified as either level 5 or level 6 under this award; and

(b) whose salary is at least 50% above the minimum annual rate of pay under this award for their classification.

1.3 Non-application of particular provisions of this award to level 5 and level 6 employees receiving specified salaries

1.3.1    For employees to whom Schedule I applies, subject to the requirements of the NES, the provisions of clauses:

(a)       13—Ordinary hours of work and rostering;

(b)       14.1—Meal breaks;

(c)       18—Allowances;

(d)       20—Overtime;

(e)       21—Penalty rates;

(f)       22.3—Annual leave loading;

(g)       27.4—Work on a public holiday; and

(h)       H.2(e)—Part-day Public Holidays,

do not apply.

1. In the Application, Macquarie contends that classification Levels 5 and 6 are relatively senior positions compared with other modern awards in the sense that they are specialised and/or managerial roles and that the seniority of the classifications is evident from the definitions in A.5 and A.6 in the BFI Award:

·  Level 5 employees exercise “considerable discretion and/or are responsible for operational planning.” They may be “specialised” and supported by one or two junior employees, or in a “managerial role (managing 5-10 employees) responsible for the operation of part or parts of the business.”

·  A Level 6 employee “typically performs a middle management role primarily to control the conduct of a part of the employer’s business.” Employees who manage 10 or more people must be classified as Level 6 (provided they are not otherwise excluded from award coverage under the Act).

1. The intended effect of the variation is that certain provisions of the BFI Award would no longer apply to an employee classified as either Level 5 or 6 and whose salary is at least 50 percent above the minimum award rate. Macquarie contend that this would mean a range of employee records would no longer have to be created or retained.

1. Macquarie further submit that simplified pay arrangements in the form of exemption rates will reduce the regulatory and administrative impact on Macquarie and its employees. As a subsidiary of Macquarie Group Limited, it is part of a group of associated companies that collectively employs over 8,000 people in Australia. With no enterprise agreement in place, it is also one of the largest workforces to which the BFI Award directly applies.

1. Macquarie contend the BFI Award in its current form inhibits the flexible working practices that have become increasingly prevalent since the COVID-19 pandemic. In circumstances where an employee’s earnings are substantially higher than the minimum rates of pay under the BFI Award, curtailment of flexible working is not consistent with the modern awards objective. Macquarie submit, in such circumstances, and together with the NES and those other clauses of the BFI Award that are not exempt, the higher rate of pay provides a safety net which is both fair and relevant.

Next steps

1. Commission staff have prepared a background document setting out the history of exemption rates in awards and providing a summary of current awards with exemption rates.

1. The matter will be listed for conference at 4.00pm (AEDT) on Tuesday 25 October 2022.  

1. Any party that wishes to participate in the conference should contact my Chambers at [e-mail]. By no later than 4.00pm (AEDT) on Monday 24 October 2022.

PRESIDENT

[1] MA000019.

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