MAX Solutions Pty Ltd

[2014] FWCA 7233

[2014] FWCA 7233

FAIR WORK COMMISSION

DECISION

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

MAX Solutions Pty Ltd
(AG2014/8967)

MAX SOLUTIONS EMPLOYMENT AND TRAINING ENTERPRISE AGREEMENT 2014

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 OCTOBER 2014

Application for approval of the MAX Solutions Employment and Training Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by MAX Employment Solutions 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 MAX Solutions Employment and Training Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Australian Municipal, Administrative, Clerical and Services Union (the ‘Union’) and 6 non-Union Employee Bargaining Representatives. It is to cover 1,414 employees who are engaged in educational, clerical and social services in satisfaction of labour hire contracts entered into by the applicant. It does not cover Regional Managers, health professionals or employees earning more than a high income threshold. 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 29 January 2014, and voting for the Agreement’s approval took place between 25-29 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 578 of the 727 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms D Homewood, Managing Director identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

• Labour Market Assistance Industry Award 2010 [MA000099];



• Clerks - Private Sector Award 2010 [MA000002];



• Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100];and



• Educational Services (Post-Secondary Education Award) 2010 [MA000075].

[4] Ms Homewoodsaid that the Agreement did provide for some terms and conditions that are less beneficial than those under the reference instruments, including a lack of provision for meal allowances where an employee works in excess of a set period of overtime, the removal of motor vehicle allowances and no annual leave loading. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay for the majority of employees, five weeks of annual leave for employees with more than three years service and additional compassionate leave. Rates of pay are to be increased by 3% on 1 December 2014, 1 December 2015, 1 December 2016 and 1 December 2017. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9.1 and 12.1 respectively, and a disputes resolution procedure at clause 13.1 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 1 October 2014, Mr R Collinson, Solicitor and Mr D Hodgson, Solicitor appeared with Ms L Hart and Mr N Inglis for the applicant and Mr Z Edwards and Mr J Cooney for the Union. Mr T Edmonds appeared at the hearing on 1 October 2014 in his capacity as EBR. The Union had filed a Declaration in relation to the application (Form 18) 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. Mr Collinson 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. However, the Union had also raised a number of its concerns in relation to the pre-approval process and the BOOT. Mr Cooney and Ms Edwards set out the Union’s concerns that Business Managers subject to annualised salaries would not be sufficiently compensated. The applicant subsequently filed undertakings in relation to the quarterly review of hours worked and the annual review of remuneration for Business Managers. At a report back on 9 October 2014, Ms Edwards submitted that the Union was satisfied with these undertakings and no longer maintained its objections in relation to the approval of the Agreement. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[6] 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, 188, 190, 191 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the MAX Solutions Employment and Training Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 16 October 2014 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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