Protect Services Pty Ltd as trustee for the Protect Services Trust

[2013] FWCA 7959

FAIR WORK COMMISSION

DECISION

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

Protect Services Pty Ltd as trustee for the Protect Services Trust
(AG2013/10690)

PROTECT SERVICES ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 OCTOBER 2013

Application for approval of the Protect Services Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Protect Services Pty Ltd, as trustee for the Protect Services Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Protect Services Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with Ms Charmaine Farrugia, the employees’ bargaining representative. The Agreement is to cover 8 employees who are engaged in administrative duties, including answering telephone calls and enquiries from members of the scheme. 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 June 2013, and voting for the Agreement’s approval took place on 26 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a show of hands, 6 of the 6 employees who cast a vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Alexander Arthur McCallum identified the Banking, Finance and Insurance Award 2010 [MA 000019] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr McCallumsaid that the Agreement provided for a number of more beneficial terms when compared with the Award. These included salaries under the Agreement are far more beneficial than those provided for under the Award. The Agreement also provides for rostered days off, a wage increase of 4% per year effective from 1 July every year, an increase in paid compassionate leave, additional paid parental leave for qualifying employees, income protection and insurance, as well as an enhanced severance pay package. Mr McCallum stated that the Agreement did not contain any less beneficial terms or conditions when compared with the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 38 respectively, and a disputes resolution procedure at clause 40 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 10 October 2013, Mr McCallum appeared for the applicant and Ms Farrugia appeared in her capacity as the employees’ bargaining representative. Mr McCallum 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. Mr McCallum explained that the applicant is engaged in the provision of a severance scheme and injury insurance to workers in a number of trades industries. He stated that the 4% increase of the employees’ salaries available from 1 July 2013, has already been paid. Ms Farrugia informed me that she was happy with the Agreement.

[5] Having heard the applicant’s 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 Protect Services Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 17 October 2013 and have a nominal expiry date of 16 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by Protect Services Pty Ltd as trustee for the Protect Services Trust to have the Protect Services Enterprise Agreement 2013 approved. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly regarding the coverage and negotiation of the agreement. The Fair Work Commission, presided over by Commissioner D. C. Smith, was tasked with determining the validity of the agreement.

The key legal issues revolved around the interpretation of the Fair Work Act 2009, specifically sections 172 and 173, which pertain to the making of enterprise agreements. The primary question was whether the agreement correctly identified the employees it covered and if it had been negotiated in good faith as required by the Act. Additionally, the court had to consider the procedural fairness in the negotiation process and whether the agreement complied with the criteria for being a simple or low risk agreement.

In reaching its decision, the Fair Work Commission examined the negotiation process, the scope of the agreement, and its compliance with the legislative requirements. The Commission found that the agreement was indeed negotiated in good faith and that it correctly identified the employees it was intended to cover. Furthermore, the agreement was deemed to be of low risk and met the necessary criteria for approval under the Fair Work Act 2009. Based on these findings, the Commission approved the agreement, confirming its compliance with all statutory requirements.

The final order of the Fair Work Commission was that the Protect Services Enterprise Agreement 2013 be approved and registered as an enterprise agreement under the Fair Work Act 2009. This approval ensures that the agreement will be legally binding on the parties involved and will govern the employment terms and conditions of the specified employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established