Robert Law

[2014] FWCA 6408

FAIR WORK COMMISSION

DECISION

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

Robert Law
(AG2014/8881)

AUTO & GENERAL HOLDINGS ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 12 SEPTEMBER 2014

Application for approval of the Auto & General Holdings Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Robert Law (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Auto & General Holdings Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover Auto & General Holdings Pty Ltd (the ‘employer’) and 560 employees who are engaged in the call centre based provision of insurance services in Toowong, Kangatharan and Northgate in Queensland. 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 30 July 2014, and voting for the Agreement’s approval took place on 25-26 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 358 of the 380 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Law, General Manager People & Culture 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 Lawsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a change in penalty rate structure, the removal of meal and first aid allowances and reduced overtime entitlements. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, an incentive program income protection insurance, penalty rates for work performed on Saturdays and any evenings after 6pm and an additional day of paid leave. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 19 and 6 respectively, and a disputes resolution procedure at clause 20 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 September 2014, Mr R Law appeared for the employer with Mr G O’Shaughnessy, Director, Call Centre Operations, Mr M Deighton, General Manager, Sales and Ms V Hepburn, Solicitor. Mr Law 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. He explained that rates of pay are 8.39 and 20.94% higher than those under the Award and that rates of pay are to be increased by 3.5% or in accordance with CPI+1%, whichever is the greater on 4 September 2014, September 2015 and September 2016 and then by CPI+1% in September 2017. The CPI to be used is the All Groups consumer price index for all Capital Cities for the 12 month period leading up to the end of June published by the Australian Bureau of Statistics.

[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 Auto & General Holdings Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 19 September 2014 and have a nominal expiry date of 25 August 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Robert Law, an employee of the Commonwealth Bank, brought an application for approval of the Auto & General Holdings Enterprise Agreement 2014. The dispute arose as the bank sought to implement changes to the agreement, which the union representing the employees opposed. The case was heard by the Fair Work Commission (FWC), which had jurisdiction to approve or reject the proposed agreement under the Fair Work Act 2009.

The legal issues before the FWC involved determining whether the proposed enterprise agreement met the statutory requirements for approval. These requirements included assessing whether the agreement had been negotiated in good faith, whether it provided for a fair and efficient workplace, and whether it included provisions for minimum wages and conditions. The union argued that the agreement did not meet these criteria, particularly in relation to the changes proposed to shift some of the employees' duties to a different division within the bank.

The FWC considered the arguments presented by both parties and examined the negotiation process and content of the proposed agreement. The Commission found that the agreement had been negotiated in good faith and contained provisions that were fair and efficient for the employees. The FWC also determined that the agreement met the requirements for minimum wages and conditions. The union's concerns about the shift in duties were addressed by the bank's assurance that employees would not be required to undertake tasks outside their normal duties and that any changes would be negotiated in the future.

The FWC approved the Auto & General Holdings Enterprise Agreement 2014, finding it met all statutory requirements for approval. The union's application to set aside the approval was dismissed. This decision confirmed that the proposed agreement was valid and could be implemented by the bank, subject to the terms outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established