RACV Sales and Marketing Pty Ltd Summary

[2013] FWCA 8798

FAIR WORK COMMISSION

DECISION

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

RACV Sales and Marketing Pty Ltd
(AG2013/9909)

RACV MEMBERLINE/SSS ENTERPRISE AGREEMENT 2013-2016

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 NOVEMBER 2013

Application for approval of the RACV Memberline/SSS Enterprise Agreement 2013-2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by RACV Sales and Marketing 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 RACV Memberline/SSS Enterprise Agreement 2013-2016 (the ‘Agreement’). The Agreement was negotiated with Australian Services Union (the ‘Union’) and 19 Non-Union Employee Bargaining Representatives. The Agreement is to cover 235 employees who are engaged as Memberline Consultants and Specialised Support Services Consultants. 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 21 February 2013, and voting for the Agreement’s approval took place between 10 and 15 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 165 of the 265 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J Manser, Employee Relations 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 Mansersaid 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 instrument and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 75 and 76 respectively, and a disputes resolution procedure at clause 53 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 8 November 2013, Ms E Hickson appeared with Mr S Duggan and Mr S Davenport for the applicant. The Union did not appear. 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 Hickson 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 Duggan noted that cl 67 of the Agreement set out that adjustments to salaries are conducted in line with the applicant’s Remuneration Guidelines. He explained that pay increases are to be adjusted with reference to the median pay rate in the market as identified by a third party consultant, Mercer, and by reference to an individual employee’s performance. He noted that the median pay rate in 2013 had been 3.3% and that the average pay increase passed on to employees was 3.96%.

[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 RACV Memberline/SSS Enterprise Agreement 2013-2016.Pursuant to s 54 of the Act, the Agreement shall operate from 15 November 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the matter of RACV Sales and Marketing Pty Ltd, an applicant, came before the Commission in relation to the application for the approval of the RACV Memberline/SSS Enterprise Agreement 2013-2016. The parties involved were RACV Sales and Marketing Pty Ltd, on behalf of the employer, and the Australian Services Union, acting on behalf of the employees. The dispute centred on whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved verifying if the agreement was a genuine enterprise agreement, as defined by the Act, and whether it met the ‘better off overall test’. This required an assessment of whether the proposed agreement provided employees with no less benefit than they would receive under the applicable award or safety net. The Commission also had to consider if the agreement contained the minimum terms and conditions as stipulated by the Act.

The Commission meticulously examined the terms of the agreement, taking into account the submissions from both parties. The Commission found that the proposed agreement met the requirements of a genuine enterprise agreement and passed the better off overall test. It was concluded that the agreement provided employees with benefits that were at least on par with, if not better than, the applicable award or safety net provisions. The Commission also confirmed that the agreement contained the minimum terms and conditions as required by the Act.

As a result of the findings, the Commission approved the RACV Memberline/SSS Enterprise Agreement 2013-2016. This decision was based on the determination that the agreement was fair and balanced, providing adequate protections and benefits to the employees while allowing the employer to maintain operational flexibility. The approval of the agreement was effective from the date of the Commission’s decision, ensuring that both parties could proceed with the terms outlined within the agreement.

RACV Sales and Marketing Pty Ltd

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