Mindpearl Limited

[2015] FWCA 6137

[2015] FWCA 6137

FAIR WORK COMMISSION

DECISION

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

Mindpearl Limited
(AG2015/4035)

MINDPEARL LIMITED, UNION ENTERPRISE AGREEMENT 2015

Clerical industry
COMMISSIONER BULL	SYDNEY, 11 SEPTEMBER 2015

Application for approval of the Mindpearl Limited, Union Enterprise Agreement 2015.

[1] An application has been made by Mindpearl Limited (the applicant) for the approval of an enterprise agreement known as the Mindpearl Limited, Union Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU Queensland) was an employee organisation involved in the agreement making process. The union has filed a statutory declaration (F18) stating that they support the approval of the Agreement and wish to be covered by the Agreement.

[3] On 1 September 2015, the Fair Work Commission (the Commission) wrote to the applicant with respect to the Agreement satisfying the better off overall test (BOOT) criteria under s.186 of the Act. In particular, the following concerns under the Act, and when compared with the Contract Call Centres Award 2010 (the Award), being the relevant award for the BOOT:

1. Consultation term not meeting the statutory requirements under s.205 of the Act;

2. Increased spread of ordinary hours; and

3. Imposed limitations on public holiday penalties.

[4] The applicant has provided undertakings in light of the concerns raised.

Consultation term

[5] With respect to the consultation term contained in cl. 8.0 - Consultation, the applicant was advised that the consultation term did not provide for the employer to consult employees with regard to a change of employees regular roster or ordinary hours of work, as required under s.205 of the Act.

[6] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at Annexure A of this decision.

Increased spread of ordinary hours

[7] With respect to cl. 23.2 of the Agreement – Ordinary Span of Hours, the ordinary span of hours is greater than specified in the Award. As such the applicant was advised that this would impact on overtime and penalty entitlements for employees, and may therefore be disadvantageous when compared to the Award.

Undertaking in relation to the spread of ordinary hours

[8] The applicant has provided an undertaking which incorporates cl. 24.6 of the Award which sets out the ordinary spread of hours and the application of penalty rates.

Public holiday penalties

[9] With respect to cl.29.0(e) which deals with public holidays, the Agreement entitles employees to public holiday penalties, however, the application of the penalties are provided under more stringent time frames in comparison to the Award.

Undertaking in relation to the spread of ordinary hours

[10] The applicant has provided an undertaking to comply with the requirements as set out in s.30.4 of the Award in respect of payment for time worked on a public holiday.

Conclusion

[11] Taking into account the higher rates of pay under the Agreement and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[12] The ASU, Queensland Branch has stated in its F18 that it wishes to be covered by the Agreement, and has been copied into the undertakings provided by the applicant. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[13] The undertakings provided by the applicant are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure B.

[14] The undertaking is not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertaking does not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[15] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[16] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 18 September 2015. The nominal expiry date of the Agreement is 3 years from the date of lodgement. The date of lodgement being 21 July 2015.

[17] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

Annexure B

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