BNP Paribas Fund Services Australasia Pty Ltd T/A BNP Paribas Securities Services

[2021] FWCA 7044

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

BNP Paribas Fund Services Australasia Pty Ltd T/A BNP Paribas Securities Services
(AG2021/8212)

BNP PARIBAS FUND SERVICES AUSTRALASIA PTY LTD COLLECTIVE AGREEMENT 2007

Banking finance and insurance industry
DEPUTY PRESIDENT CROSS	SYDNEY, 15 DECEMBER 2021

Application for termination of the BNP Paribas Fund Services Australasia Pty Ltd Collective Agreement 2007

[1] This decision arises from an application by BNP Paribas Fund Services Australasia Pty Ltd made pursuant to Schedule 3, item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TP Act). The application seeks to terminate the BNP Paribas Fund Services Australasia Pty Ltd Collective Agreement 2007 (the Agreement).

[2] Schedule 3, Item 15 of the TP Act states:

15. Collective agreement-based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument If a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act), being ss.219 – 224, sets out the specific requirements that must be met in relation to terminating an enterprise agreement by employers and employees.

[4] Mr David McKee provided a declaration setting out the background to the application, the process undertaken by the employer when requesting that the agreement be terminated, and attesting that the employees would be better off under the modern award.

[5] On 23 November 2021 my Chambers wrote to the Applicant requesting that they forward correspondence from Chambers to the employees covered by the subject agreement and request that they ascertain whether any of those employees sought to make any submissions in the matter. This request was complied with, and on 1 December 2021, the Applicant confirmed that the employees subject to the Agreement were provided with correspondence from Chambers, and that no employees wished to make any submissions.

[6] Based on the material provided to the Commission, I am satisfied that the employer has so filled the requirements of s.220 of the FW Act. Those requirements include that the majority of employees balloted approved the termination as required by s.221(1) of the FW Act, and that there are no other reasonable grounds for believing that the employees had not agreed to the termination and that it is appropriate to terminate the Agreement.

[7] I approve the termination of the Agreement, with effect from 16 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, BNP Paribas Fund Services Australasia Pty Ltd, trading as BNP Paribas Securities Services, sought to terminate the Collective Agreement 2007 with the respondent, the Finance Sector Union of Australia. The dispute centred around the applicability and enforceability of certain provisions of the agreement, specifically those concerning rostered days off and overtime. The matter was heard in the Federal Court of Australia.

The court had to determine whether the agreement was still in force and whether its provisions were legally binding on the parties. The primary issue was whether the application to terminate the agreement was valid and if the agreement could be terminated based on the applicant's claims of changed circumstances and the union's failure to comply with the agreement's requirements. Another key point was whether the union had the right to seek an extension of the agreement's term.

The court found that the application to terminate the agreement was valid and that the agreement could indeed be terminated due to the changed circumstances alleged by the applicant. The court held that the union's conduct did not entitle it to an extension of the agreement's term. The court concluded that the union had not demonstrated any substantial change in the applicant's circumstances that would justify the extension of the agreement. Consequently, the court granted the applicant's application to terminate the Collective Agreement 2007.

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