TWU Nominees Pty Ltd T/A TWUSUPER

[2020] FWCA 1299

[2020] FWCA 1299

FAIR WORK COMMISSION

DECISION

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

TWU Nominees Pty Ltd T/A TWUSUPER
(AG2020/124)

TWU NOMINEES PTY LTD ENTERPRISE AGREEMENT 2019

Banking finance and insurance industry
COMMISSIONER BOOTH	BRISBANE, 11 MARCH 2020

Application for approval of the TWU Nominees Pty Ltd Enterprise Agreement 2019.

[1] An application has been made under s. 185 of the Fair Work Act 2009 (the Act) by TWU Nominees Pty Ltd T/A TWUSUPER (the Applicant) for approval of the TWU Nominees Pty Ltd Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant, the employee bargaining representatives and the Finance Sector Union of Australia (FSU) on 10 February 2020, raising concerns in relation to the Agreement.

[3] The Applicant provided correspondence addressing the concerns raised on 12 February 2020. Further to this, signed undertakings were provided on 28 February 2020.

[4] In its undertakings, the Applicant advised that employees will be paid in accordance with rates of pay detailed in the “TWU Nominees Pty Ltd Enterprise Agreement – Minimum Salaries As at 1 July 2019” (Schedule 1) filed with the Commission on 26 February 2020 but which does not form part of the Agreement.

[5] I observe that Schedule 1 satisfies the BOOT test on the basis that the minimum salary for each category provides for a higher minimum wage than what is provided for that employee in the applicable modern Award.

[6] Schedule 1 is publicly accessible on the Commission’s file should anyone, such as an employee, request to access it.

[7] The rates of pay are not in the Agreement itself, as such I am satisfied that there is no redacting being made to the Agreement which would cause conflict with the decision of AWU v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FCWFB 7501.

[8] The undertakings meet the requirements of s. 190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to his Decision as Attachment A.

[9] I observe the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 4.1 – annual leave;

•  Clause 4.6 – family and domestic violence leave; and

•  Clause 7.5 – redundancy.

[10] However, noting the NES precedence clause at clause 1.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[11] Subject to the undertakings provided and the matters raised at paragraph [9], I am satisfied that each of the requirements of ss. 186, 186, 188 and 190 of the Act as are relevant to this application for approval have been met.

[12] The FSU filed a Form F18 in the matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s. 183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2), I note the Agreement covers the FSU.

[13] The Agreement is approved and, in accordance with clause 1.5 of the Agreement and s.54 of the Act, will operative from 7 days from the date of approval of the Agreement. The nominal expiry date is 17 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE507378  PR717390>

Attachment A