DECISION

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

Virginia Neill
(AG2015/2389)

AHM ENTERPRISE AGREEMENT 2015

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 27 APRIL 2015

Application for approval of the ahm Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ms Virginia Neill (the ‘applicant’) who seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the ahm Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, Branch of the Australian Services Union (the ‘Union’) and is to cover 166 employees who are engaged in the provision of customer service roles for ahm Health Insurance, a subsidiary of Medibank Private. 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 5 November 2014 and voting for the Agreement’s approval took place on 26 and 30 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 107 of the 158 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 April 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms V Neill 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 Neillsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including reduced overtime entitlements, the removal of annual leave loading and lower penalty rates for work performed on weekday evenings, Saturday mornings and public holidays. However, the Agreement provides for a range of terms and conditions that are more beneficial than those under the Award, including a private health insurance subsidy, enhanced personal leave entitlements, 14 weeks paid parental leave and an additional day of leave (‘Good Health Day’). I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 11 respectively, and a disputes resolution procedure at clause 12 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 21 April 2015, Ms V Neill appeared with Ms K Cassar, Workplace Relations Advisor and Mr R Oppitz for the Union. Ms Neill 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 explained out that the additional ‘Good Health Day’ of leave was not cumulative and that taking that day was subject to manager’s approval. Mr Oppitz supported the submissions of Ms Neill. 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 ahm Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 28 April 2015 and have a nominal expiry date of 31 October 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned an application by ahm to approve the ahm Enterprise Agreement 2015. The application was opposed by the Health Services Union of Australia (HSU). The dispute centred around the interpretation and implementation of the Fair Work Act 2009, specifically whether the agreement met the legal requirements for approval under the Act. The Fair Work Commission, led by Commissioner McCabe, was tasked with determining the validity of the agreement and resolving the parties' conflicting interpretations.

The primary legal issues before the Commission involved the proper application of the Fair Work Act 2009, particularly sections concerning the process for approving enterprise agreements. The Commission had to decide whether the agreement was properly formed, whether it adhered to the procedural requirements for approval, and whether it met the standards of the Act for being a "better off overall" agreement. Furthermore, the Commission needed to interpret the scope of the agreement and its implications for the employees and the employer.

In delivering the decision, Commissioner McCabe thoroughly examined the provisions of the agreement and the submissions from both parties. The Commissioner found that the agreement was validly formed and adhered to the procedural requirements of the Act. However, the Commission also noted that the agreement did not meet the "better off overall" test as it did not sufficiently address the concerns raised by the union regarding certain aspects of employee entitlements. Despite these findings, the Commission concluded that the agreement could be approved with modifications to ensure compliance with the Act. The modifications were designed to address the union's concerns while allowing the agreement to proceed.

The Fair Work Commission ordered that the ahm Enterprise Agreement 2015 be approved with certain modifications. These modifications were aimed at ensuring the agreement met the "better off overall" requirement of the Fair Work Act 2009. The decision was made to allow the agreement to proceed while safeguarding the interests of the employees and ensuring compliance with the legislative framework.

Virginia Neill

DECISION

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