AMP Services Limited
[2023] FWCA 199
•20 JANUARY 2023
| [2023] FWCA 199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
AMP Services Limited
(AG2023/97)
AXA AUSTRALIA ENTERPRISE AGREEMENT 2009
| Banking finance and insurance industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 20 JANUARY 2023 |
Application for termination of the AXA Australia Enterprise Agreement 2009 – termination approved and effective on and from 20 January 2023
On 18 January 2023, AMP Services Limited (Applicant) made an application to the Fair Work Commission (Commission) to terminate the AXA Australia Enterprise Agreement 2009 [AE873219] (Agreement) under s.222 of the Fair Work Act 2009 (Act). The Agreement has a nominal expiry date of 1 November 2013.
Whilst the Application has been filed more than 14 days after the termination was agreed to, in all the circumstances I consider it fair to extend the time period for the filing of the Application to the time that the Application was actually filed (see s.22(3)(b) of the Act).
Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:
“223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
The application was supported by a Statutory Declaration made on 16 December 2022 by Rebecca Byun, Senior Manager – Workplace Relations of the Applicant. Ms Byun declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:
a)on 18 November 2022, information regarding the proposed termination was sent out to the workforce;
b)from 21 November 2022 to 25 November 2022, group and individual consultation sessions were held with workers; and
c)on 25 November 2022, all affected workers were issued with proposed new employment contracts. They were notified of this and the consequences of their acceptance or rejection of same by email.
Ms Byun also declared that the following steps were taken by the Applicant to notify all relevant employees covered by the Agreement of the time and place at which the vote was to occur; and the voting method to be used:
a)from 25 November 2022, the employees were given seven (7) days to vote online; and
b)the voting method used was electronic.
On 25 November 2022 voting commenced. Voting concluded on 2 December 2022. Ms Byun declared on 5 December 2022, when votes were checked, that a majority of employees who cast a valid vote approved of the termination (27 employees of the 36 employees who voted approved the termination).[1]
The Finance Sector Union (FSU), who is covered by the Agreement, was consulted by the Applicant as to the termination approval process, and the termination of the Agreement itself. No submissions in opposition to the termination were filed by the FSU, or any other person.[2]
Based upon the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223(a) and (b) of the Act have been met. I am also satisfied, on the evidence before me, that there are no other reasonable grounds for believing that relevant employees have not approved the termination (s.223(c)) and that it is appropriate to approve the termination of the Agreement taking into account the views (or non-opposition of the FSU).
In accordance with s.223 of the Act, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination of the Agreement will come into effect from the date of this Decision (i.e. 20 January 2023).
DEPUTY PRESIDENT
[1] Ms Byun further declared that nine additional votes to approving the termination were received in the period 9 December 2022 to 16 December 2022.
[2] The FSU has advised the Applicant in writing that it does not oppose the termination of the Agreement. A copy of this correspondence was filed with the Application.
Printed by authority of the Commonwealth Government Printer
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