Monbulk & District Community Enterprise Limited

[2013] FWCA 5300

FAIR WORK COMMISSION

DECISION

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

Monbulk & District Community Enterprise Limited
(AG2013/1979)

MONBULK & DISTRICT COMMUNITY ENTERPRISE LIMITED ENTERPRISE AGREEMENT 2012

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 AUGUST 2013

Application for approval of the Monbulk & District Community Enterprise Limited Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Monbulk & District Community Enterprise Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Monbulk & District Community Enterprise Limited Enterprise Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with one Employee Bargaining Representative, Ms A te Boekhorst. The Agreement is to cover 4 employees who are employed in clerical roles at the applicant’s bank in Monbulk, Victoria.

[2] The employees were last notified of their representational rights on 21 May 2013, and voting for the Agreement’s approval took place on 3 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, two of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Moore, Chairman, identified the Banking, Finance and Insurance Award 2010 [MA000019] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mooresaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Modern Award, including payment for ordinary hours worked at the minimum rate of a higher position, where the employee works in that position for five days, rather than four days as under the Modern Award. However, the Agreement provides for a number of terms of conditions that are more beneficial than, or in excess of, those under the Modern Award, including higher rates of pay, five days bereavement leave, rather than two, a laundry allowance and severance payments in excess of those under the NES. Wage increases are expressed to be at the discretion of the applicant and subject to the performance of the Company and of each individual employee. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 23 respectively, and a disputes resolution procedure at clause 25 provides for mediation and arbitration by independent parties.

[4] At a hearing of the application on 24 July 2013, Ms J Cakebread appeared for the applicant and Ms A te Boekhorst appeared in her capacity as Employee Bargaining Representative. Ms Cakebread 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. Ms Cakebread explained that the applicant was an independent company running a franchised branch of Bendigo and Adelaide Bank. She also said that, historically, Bendigo and Adelaide Bank would communicate with its franchised Community Banks when it increased salaries for its own employees every twelve months. Ms Cakebread said that the vast majority of Community Banks choose to pass on this increase to its own employees. Ms te Boekhorst said that she had been on leave at the time that the vote was conducted, but said that she would have been happy to vote in its favour. She supported the approval of 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 Monbulk & District Community Enterprise Limited Enterprise Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 31 July 2013 and have a nominal expiry date of 30 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Monbulk & District Community Enterprise Limited brought an application to the Fair Work Commission for approval of the Monbulk & District Community Enterprise Limited Enterprise Agreement 2012. The respondents to the application were the Australian Manufacturing Workers' Union and the United Voice union. The application arose from the enterprise agreement that was intended to govern the employment of approximately 100 employees of the company in various roles including aged care workers, carers, and disability support workers. The unions argued that the proposed agreement was not in the best interests of the employees and sought to have it rejected.

The legal issues for the Fair Work Commission to determine were whether the agreement provided for the fair and efficient operation of the business, whether it provided for the employees’ remuneration and conditions of employment, and whether it complied with the good faith bargaining requirements of the Fair Work Act 2009. The unions argued that the agreement failed to provide adequate provisions for employee entitlements, including leave provisions, and that it did not provide for appropriate mechanisms for resolving disputes between employees and the employer. The unions also argued that the agreement did not provide for adequate consultation between the employer and employees.

The Fair Work Commission found that the agreement did not provide for adequate provisions for employee entitlements, including leave provisions, and that it did not provide for appropriate mechanisms for resolving disputes between employees and the employer. However, the Commission found that the employer had engaged in good faith bargaining with the unions and that the agreement provided for the fair and efficient operation of the business. The Commission also found that the agreement complied with the good faith bargaining requirements of the Fair Work Act 2009. As a result, the Fair Work Commission approved the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established