Newcastle Permanent Building Society Ltd t/as Newcastle Permanent

[2015] FWCA 6391

[2015] FWCA 6391

FAIR WORK COMMISSION

DECISION

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

Newcastle Permanent Building Society Ltd t/as Newcastle Permanent
(AG2015/4842)

NEWCASTLE PERMANENT BUILDING SOCIETY ENTERPRISE AGREEMENT 2015

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 SEPTEMBER 2015

Application for approval of the Newcastle Permanent Building Society Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Newcastle Permanent Building Society Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Newcastle Permanent Building Society Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the ‘Union’) and thirteen nominated Employee Bargaining Representatives (EBRs). The Agreement is to cover 495 employees who are engaged in Levels 1-3 (out of ten levels in the applicant’s organisational structure, including the Executive Team) at the applicant’s retail banking operations throughout New South Wales. 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. I note that the Agreement is intended to replace an existing enterprise agreement, being the Newcastle Permanent Building Society Enterprise Agreement 2012 (the ‘old Agreement’), which is due to expire on 28 September 2015.

[2] The employees were last notified of their representational rights on 2 December 2014 and voting for the Agreement’s approval took place between 7 and 20 August 2015. The time limits under s 181(2) of the Act are thereby. In a vote conducted by an independent third party, 334 of the 349 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Kett, Head of Support Services, 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 Kettsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this is not strictly true as some allowances and loadings have been loaded into a higher base rate of pay. The Agreement also provides for flexible leave arrangements. In any event, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 29 and 21 respectively, and a disputes resolution procedure at clause 30 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 9 September 2015, Mr M Adams, Mr D Kett and Ms F Laczina appeared for the applicant and Mr P Sansom for the Union. Mr Adams 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. The Agreement was accompanied by an application made pursuant to s 222 of the Act to terminate the old Agreement. However, as the old Agreement was still within its nominal term and no vote had been conducted of the employees to determine whether they agreed to terminate the old Agreement, I dismissed this application with the consent of the parties (see: Newcastle Pemanent Building Society Ltd t/as Newcastle Permanent [2015] FWC 6398).

[5] Ms Laczina explained that rates of pay are to be increased by 2.75% or in accordance with CPI, whichever is the higher, up to a maximum of 3.5% on 1 September 2015, 1 September 2016 and 1 September 2017 and that the first of these increases was to be paid following the approval of the Agreement. Mr Sansom supported the applicant’s submissions. 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.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Newcastle Permanent Building Society Enterprise Agreement 2015.The Agreement shall operate from 28 September 2015 and have a nominal expiry date of 28 September 2018. I note that pursuant to s 54(2)(b) of the Act, the old Agreement will cease operation on 28 September 2015.

DEPUTY PRESIDENT

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