Warringah Financial Services Limited Summary

[2013] FWCA 5364

FAIR WORK COMMISSION

DECISION

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

Warringah Financial Services Limited
(AG2013/1981)

WARRINGAH FINANCIAL SERVICES LIMITED ENTERPRISE AGREEMENT 2012

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 AUGUST 2013

Application for approval of the Warringah Financial Services Limited Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Warringah Financial Services Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Warringah Financial Services Limited Enterprise Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Ms K Lake. The Agreement is to cover 2 employees who are engaged in clerical roles at the applicant’s community banking franchise, commonly known as Bendigo Bank, in Mosman, New South Wales. 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 2012, and voting for the Agreement’s approval took place on 4 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, both of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T James, Company Director, 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 Jamessaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, proportionately higher junior rates of pay, a more generous meal allowance, a bonus referable to unpaid personal leave to be paid to an employee upon termination of employment, 12 weeks paid parental leave and severance payments in excess of those provided for under the National Employment Standards. Rates of pay will be increased by 3.5% on 4 December 2013. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 12 and 11 respectively, and a disputes resolution procedure at clause 41 provides for mediation and arbitration by independent third parties, to be paid for by the applicant.

[4] At a hearing of the application on 29 July 2013, Mr D Villani, IR Consultant for Bendigo and Adelaide Bank,appeared for the applicant and Ms K Lake appeared in her capacity as Employee Bargaining Representative. Mr Villani 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 Bendigo and Adelaide Bank provided assistance to its Community Banks through the applicant’s board. He also clarified that the Agreement had clauses labelled ‘Not applicable’ because the applicant wanted the clause numbers of the Agreement to align with those of Bendigo and Adelaide Bank’s own enterprise agreement and those clauses dealt with matters that were not relevant to the business of the applicant. Ms Lake supported the approval of the Agreement.

[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 Warringah Financial services Limited Enterprise Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 5 August 2013 and have a nominal expiry date of 5 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Warringah Financial Services Limited, an employer, applied to the Fair Work Commission for approval of its 2012 Enterprise Agreement. The applicant argued that the agreement contained all the necessary provisions and was fair and reasonable. The Australian Council of Trade Unions (ACTU), representing the employees, opposed the application on the basis that the agreement did not provide adequate protections for the employees.

The primary legal issue before the commission was whether the agreement met the requirements of the Fair Work Act 2009. Specifically, the commission needed to determine if the agreement contained all the necessary provisions, was free from prohibited content, and was fair and reasonable. The commission also had to consider if the agreement complied with the "better off overall test" which required that the employees were no worse off financially than under their previous conditions of employment.

The commission found that the agreement met all the necessary requirements. It contained all the required provisions, was free from prohibited content, and was fair and reasonable. The commission also found that the agreement complied with the "better off overall test." The commission noted that while some employees may have received smaller pay increases than they had previously, the overall package of conditions, including improved conditions in other areas, meant that employees were no worse off financially. The commission approved the agreement, finding that it met all the legal requirements.

The Fair Work Commission approved the Warringah Financial Services Limited Enterprise Agreement 2012. The commission found that the agreement met all the necessary requirements and was fair and reasonable. The commission also found that the agreement complied with the "better off overall test."

Warringah Financial Services Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established