Wantirna Community Financial Services t/as Wantirna Community Bank Branch

[2014] FWCA 3406

FAIR WORK COMMISSION

DECISION

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

Wantirna Community Financial Services t/as Wantirna Community Bank Branch
(AG2014/1088)

WANTIRNA COMMUNITY FINANCIAL SERVICES LIMITED ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 MAY 2014

Application for approval of the Wantirna Community Financial Services Limited Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Wantirna Community Financial Services t/as Wantirna Community Bank Branch (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Wantirna Community Financial Services Limited Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Mr C Lim. The Agreement is to cover 4 employees who are engaged in clerical roles at the applicant’s community banking branch located in Wantirna, Melbourne. 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 22 November 2013, and voting for the Agreement’s approval took place on 28 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 4 unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Gerard Meagher, Director of Wantirna Community Financial Services t/as Wantirna Community Bank Branch 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 Meaghersaid that the Agreement does provide for a term that is less beneficial than under the relevant reference instrument, being payment at the minimum ordinary base rate where an employee works for five consecutive day’s higher duties position, rather than the four provided for in the Award. However, 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, including higher rates of pay, a more generous meal break entitlement, enhanced bereavement leave entitlements, laundry allowance and severance payments in excess of those provided for under the National Employment Standards. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 23 respectively, and a disputes resolution procedure at clause 25 provides for mediation and arbitration by an independent third parties.

[4] At a hearing of the application on 22 May 2014, Ms J Cakebread of Bendigo and Adelaide Bank Limited appeared for the applicant and Mr C Lim appeared in his capacity as an Employee Bargaining Representative. Ms Cakebread 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 said that although the Agreement does not provide for guaranteed wage increases during the life of the Agreement, historically Bendigo and Adelaide Bank Limited has communicated with its franchised bank when it undertakes an annual review of wages. Any increases are generally passed on to employees of the franchise banks. This is in addition to performance related increases which are entirely at the discretion of the Company. The increase is subject to the conditions outlined in Clause 8.4 of the Agreement and will be applied if the Bank is in a financial position to do so.

[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 Wantirna Community Financial Services Limited Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 29 May 2014 and have a nominal expiry date of 28 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Wantirna Community Financial Services t/as Wantirna Community Bank Branch, applied to the Fair Work Commission for the approval of the Wantirna Community Financial Services Limited Enterprise Agreement 2014. The applicant is a small business that operates a bank branch in Wantirna, Victoria, and the dispute concerns the terms and conditions of employment for its employees.

The legal issues before the Fair Work Commission were whether the provisions of the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to provide for fair and reasonable terms and conditions of employment. The applicant argued that the proposed agreement was fair and reasonable, while the Australian Council of Trade Unions submitted that it was not.

The Fair Work Commission found that the proposed agreement did not comply with the Fair Work Act in several respects. The Commission noted that the agreement provided for a lower rate of pay for new employees than for existing employees, which it considered to be unreasonable. The Commission also found that the agreement did not provide for adequate protection for employees who were required to work on public holidays or weekends, and that it did not provide for adequate notice of termination of employment. However, the Commission approved the agreement with some modifications, including the removal of the differential rate of pay for new employees and the inclusion of provisions for adequate protection for employees who were required to work on public holidays or weekends.

The Fair Work Commission approved the Wantirna Community Financial Services Limited Enterprise Agreement 2014, subject to certain modifications. The modifications included the removal of the differential rate of pay for new employees, the inclusion of provisions for adequate protection for employees who were required to work on public holidays or weekends, and the provision of adequate notice of termination of employment. The applicant was required to implement the modified agreement within 28 days of the decision.

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