National Australia Bank Limited

[2014] FWCA 4741

[2014] FWCA 4741

FAIR WORK COMMISSION

DECISION

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

National Australia Bank Limited
(AG2014/1665)

NAB ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 JULY 2014

Application for approval of the NAB Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by National Australia Bank Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the NAB Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and one non-Union Employee Bargaining Representative and is to cover 29,619 employees who are employed by National Australia Bank Limited, National Wealth Management Services Limited and Australian Market Automated Quotation (Ausmaq) System Limited. I note that the latter two entities are fully owned by National Australia Bank Limited. Unusually, the Agreement covers all employees of these entities, including senior executives. 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 4 September 2013, and voting for the Agreement’s approval took place between 10 and 19 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic ballot conducted by an independent third party, 6,851 of the 8,146 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J O’Brien identified the National Australia Bank Group Award 2002 [AP818201] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr O’Briensaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including the removal of annual leave loading for Group 4 employees, a three hour minimum engagement for part-time or temporary (casual) employees and an increased span of ordinary hours. However, the Agreement also provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instrument, including enhanced personal and carer’s leave entitlements, more generous higher duties allowances and additional annual leave for certain shift workers. I am well satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 63 and 53 respectively, and a disputes resolution procedure at clause 64 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 16 July 2014, Mr J O’Brien appeared with Ms K Irwin and Ms M Salmon for the applicant and Mr B Karambatsos for the Union. 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. Mr J MacKinnon appeared in his capacity as a non-Union Employee Bargaining Representative. Mr O’Brien 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. He explained that Groups 1 and 2 would receive increases to their base rates of pay on 1 October 2014 and 1 October 2015 of 2%, with further performance based increases of 2% on 1 January 2015 and 1 January 2016. The ‘Level Floor Rates’ for Level 3 Employees would increase by 3% on 1 March 2014, 1 March 2015 and 1 March 2016. Mr Karambatsos affirmed that the Union supported the Agreement. Mr MacKinnon submitted that while he did not object to the approval of the Agreement, he had some concerns that employees at Levels 3 and 4 were numerically disadvantaged in the vote for approval of the Agreement and that there was some dissatisfaction with the nature of the pay increases for those employees. Mr O’Brien responded by explaining that Levels 1 and 2 covers employees in administrative and operational roles, whereas the applicant had taken the view that it was appropriate for the more senior employees at Levels 3 and 4 to be subject to individual performance and market based remuneration. Mr MacKinnon accepted that the Act makes no provision to separate those who have already been identified as appropriately covered by an enterprise 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 NAB Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 23 July 2014 and have a nominal expiry date of 31 March 2016.

DEPUTY PRESIDENT

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