BNP Paribas Australia

[2014] FWCA 6387

[2014] FWCA 6387

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

BNP Paribas Australia
(AG2014/7423)

BNP PARIBAS GRADED STAFF CERTIFIED AGREEMENT 2005

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2014

Application for termination of the BNP Paribas Graded Staff Certified Agreement 2005.

[1] This is an application, filed by BNP Paribas Australia (the ‘applicant’) pursuant to Sch 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’) and s 222 of the Fair Work Act 2009 (the ‘Act) to terminate the BNP Paribas Graded Staff Certified Agreement 2005 (the ‘Agreement’). Relevantly, the Agreement passed its nominal expiry date on 3 March 2008. The Agreement covers 40 employees engaged in the provision of banking and finance services. The employees would be otherwise covered by the Banking, Finance and Insurance Industry Award 2010 [MA000019] (the ‘Modern Award’).

[1] The relevant provisions of the Act governing this application are set out at ss 220-224 as follows:

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

[2] The application was supported by a statutory declaration of Ms C Doyle, Head of Human Resources for the applicant (s 222(2)). Ms Doyle said that the applicant conducted two information sessions, notified the employees by email, on 17 and 19 June 2014 about the Agreement and possible future industrial arrangements. A total of 13 employees attended these sessions. The applicant conducted five further consultation sessions in relation to the proposed termination of the Agreement on 7, 8, 10, 17 and 24 July 2014. A total of 18 employees attended these sessions.

[3] Ms Doyle deposed that as a result of the consultation and information sessions, the applicant forwarded an email to employees setting out that the applicant would provide a letter to employees preserving certain entitlements from the Agreement by varying their employment contracts in relation to long service leave, redundancy entitlements, accident pay, bereavement leave, carers leave and parental leave. A proposed draft of this letter was emailed to employees on 7 August 2014 along with the details of a vote for termination of the Agreement and a link to the Modern Award in the same email.

[4] In an electronic ballot conducted between 20 and 25 August 2014, 13 of the 15 relevant employees voted to approve the termination of the Agreement, satisfying s 221(1) of the Act. I am further satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they agreed to terminate the Agreement (s 220(2) and, for the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination (s 223(c)).

[5] Upon reviewing the application and the statutory declaration of Ms Doyle, I am satisfied that all the requirements of the Act, in particular, ss 220, 221, 222 and 223 have been met. Accordingly, the BNP Paribas Graded Staff Certified Agreement 2005 is terminated. Pursuant to s 224 of the Act, the termination is to take effect on and from 15 September 2014.

DEPUTY PRESIDENT

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