BNP Paribas Australia

[2014] FWCA 917

[2014] FWCA 917

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
(AG2013/12910)

BANQUE NATIONALE DE PARIS SENIOR STAFF CERTIFIED AGREEMENT 1997-1999

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 FEBRUARY 2014

Application for termination of the Banque Nationale de Paris Senior Staff Certified Agreement 1997-1999.

[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 Banque Nationale De Paris Senior Staff Certified Agreement 1997-1999 (the ‘Agreement’). Relevantly, the Agreement passed its nominal expiry date on 16 December 1999. The Agreement covers 90 employees engaged in the provision of banking and finance services. The employees would otherwise be covered by the Banking, Finance and Insurance Industry Award [MA000019] (the ‘Modern Award’).

[2] 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.

[3] 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 had conducted four information sessions in relation to the termination of the Agreement. These were conducted by herself and Ms S Campbell, HR & Organisational Change Manager.

[4] Ms Doyle deposed that at a further meeting conducted on 21 November 2013 with some of the employees, the following entitlements were proposed to be preserved following the termination of the Agreement:

● Accrual of annual leave at the rate of 25 working days per annum;
● Accrual of long service leave at:

i. 4.5 months after 15 years’ continuous service and 1.5 months for every 5 years’ continuous after the first 15 years’ continuous service, for employees who commenced employment with the applicant on or before 16 December 1997;

ii. 3 months after 15 years’ continuous service and 1 month for every 5 years’ continuous service after the first 15 years’ continuous service, for employees who commenced employment with the applicant after 16 December 1997;

● Accrual of sick leave at the rate of 12 days per annum;
● Redundancy entitlements in accordance with scale provided for in the Agreement; and
● Entitlement to have the applicant pay the employee’s annual salary in one of the two following ways:

i. in 26 equal fortnightly instalments or alternate pay cycle; or

ii. a base salary equal to 12/13ths thereof, in 26 equal fortnightly instalments or alternate pay cycle plus a payment equal to 1/12th of the base salary with the first pay in December of each year.

[5] A vote of the affected employees was conducted by email between 12 and 18 December 2013. Reminder emails were sent on 12, 16 and 17 December 2013. I am 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)). Of the 49 employees who voted, 42 voted to approve the termination of the Agreement, satisfying s 221(1) of the Act. 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)).

[6] At a hearing of the application on 29 January 2014, Ms R Kelleher, Solicitor appeared with Ms C Doyle for the applicant. Ms Kelleher confirmed the content of Ms Doyle’s statutory declaration. She explained that, at present, the applicant did not intend to negotiate a further enterprise agreement. Accordingly, the relevant employees would be covered by the Banking, Finance and Insurance Industry Award 2010. She explained that the conditions proposed to be retained from the old Agreement (as above) would be preserved by way of variation to individual employment contracts.

[7] Having considered the applicant’s submissions and 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 Banque Nationale De Paris Senior Staff Certified Agreement 1997-1999 is terminated. Pursuant to s 224 of the Act, the termination is to take effect on and from 29 January 2014.

DEPUTY PRESIDENT

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