DECISION

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

Redundancy Payment Central Fund Limited T/A Incolink
(AG2015/4587)

REDUNDANCY PAYMENT CENTRAL FUND LIMITED (INCOLINK) AGREEMENT 2015

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 AUGUST 2015

Application for approval of the Redundancy Payment Central Fund Limited (Incolink) Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Redundancy Payment Central Fund Limited t/as Incolink (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Redundancy Payment Central Fund Limited (Incolink) Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Municipal, Administrative, Clerical and Services Union (the ‘Union’) and seven nominated Employee Bargaining Representatives. The Agreement is to cover 42 employees who are engaged in the administration of redundancy funds in the building sector in Victoria and Tasmania.

[2] The employees were last notified of their representational rights on 20 April 2015 and voting for the Agreement’s approval took place on 29 and 30 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an online ballot, 26 of the 31 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D O’Brien, Chief Executive Officer, identified the Clerks – Private Sector Award 2010 [MA000002], the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] and the Clerical and Administrative Employees (Victoria) Award 1999 [AP773032] as the relevant reference instruments 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 instruments, including longer notice to be given by employees, an increased span of hours and the removal of some shift and weekend work entitlements. However, the Agreement provides for higher rates of pay, five days extra paid leave for the Christmas and New Year close of trade, enhanced redundancy entitlements and a 35 hour week. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 28 and 41 respectively, and a disputes resolution procedure at clause 42 provides for conciliation and arbitration by the Commission or mediation and/or arbitration by an agreed independent third party.

[4] At a hearing of the application on 20 August 2015, Ms A Lester of A.L. Lester and Associatesappeared with Mr D O’Brien, Ms L Meagher and Mr R Savagefor the applicant and Ms K Dickie for the Union. Ms Lester 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. Ms Lester explained that this was the first enterprise agreement to cover the applicant’s workforce and that salaries are to be increased by 2.8% on 1 July 2016 and by 3% on 1 July 2017. Ms Dickie supported the submissions of the applicant. 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.

[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 Redundancy Payment Central Fund Limited (Incolink) Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 27 August 2015 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Redundancy Payment Central Fund Limited, trading as Incolink, which applied for approval of the Redundancy Payment Central Fund Limited (Incolink) Agreement 2015. The matter was heard in the Fair Work Commission. The applicants sought to establish a fund to provide for redundancy payments for employees in the event of the employer's insolvency, in compliance with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements under the Fair Work Act for an approved fund. This involved assessing whether the agreement was fair and reasonable and whether it provided adequate protections for employees. Additionally, the Commission had to consider whether the agreement complied with the prescribed form and content requirements.

The Commission examined the agreement's provisions, including the establishment, administration, and investment of the fund. It considered the protections afforded to employees and the mechanisms for ensuring the fund's solvency. The Commission noted that the agreement provided for independent trustees and regular audits, which were essential safeguards. It found that the agreement was fair and reasonable and that it complied with the statutory requirements.

Following its assessment, the Commission approved the agreement, finding that it met all necessary criteria. The approval ensures that employees of participating employers will receive redundancy payments through the fund in the event of insolvency. This decision provides clarity and legal certainty for employers and employees within the affected industries.

Redundancy Payment Central Fund Limited T/A Incolink

DECISION

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