RAC Distribution Pty Ltd

[2013] FWCA 5391

[2013] FWCA 5391

FAIR WORK COMMISSION

DECISION

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

RAC Distribution Pty Ltd
(AG2013/2005)

DISTRIBUTION ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 AUGUST 2013

Application for approval of the Distribution Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by RAC Distribution Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Distribution Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’). The Agreement is to cover 231 employees who are employed by the applicant in its Member Service and Contact Centre (Sales) department and who are eligible to be members of the Union. 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 11 March 2013, and voting for the Agreement’s approval took place between 28 June 2013 and 4 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic vote, 88 of the 173 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J Pescud, Human Resources Consultant, 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’). Ms Pescudsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the Modern Award, including a longer spread of hours, a reduction in penalty rates and a minimum of 3, rather than 4 hours paid for work performed on public holidays. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the Modern Award, including a paid 15 minute rest break where the employee works for more than five hours, the treatment of Easter Saturday as a public holiday, 12 days of personal leave, two weeks notice for employees who have worked for between six months and one year and more generous redundancy entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 23 respectively, and a disputes resolution procedure at clause 21 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 29 July 2013, Ms J Pescud appeared for the applicant and Ms A Clancy 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. Ms Pescud 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. She acknowledged that the number of employees voting in favour of the approval of the Agreement, while meeting the legislative requirement, was relatively low. She suggested that this may have been due to uncertainty as to the new performance based component of salary increases. Rates of pay are to be increased by 3% on 1 July 2013, 2% on 1 July 2014 and 2% on 20 July 15, but there is also an additional annual variable salary increase of between 0-3% effective from 1 July 2014, which is subject to a review of performance and behaviour. Even so, Ms Pescud submitted that the employees would be better off overall under the Agreement and drew attention to its higher rates of pay. Ms Clancy supported the submissions of the applicant.

[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 Distribution Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 5 August 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

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