Export Finance and Insurance Corporation T/A Export Finance Australia

[2021] FWCA 5832

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Export Finance and Insurance Corporation T/A Export Finance Australia
(AG2021/6977)

EFIC WORKPLACE AGREEMENT 2008-2011

Banking finance and insurance industry
DEPUTY PRESIDENT EASTON	SYDNEY, 15 SEPTEMBER 2021

Application for termination of the EFIC Workplace Agreement 2008-2011.

[1] Export Finance and Insurance Corporation T/A Export Finance Australia (the Employer) has made an application under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) for the approval of the termination of the Export Finance and Insurance Corporation Workplace Agreement 2008 – 2011 (the 2008 Agreement). The 2008 Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] The application was supported by a Declaration by Ms Victoria Doherty, Chief Human Resources Officer of the Employer.

[3] Item 15 of Schedule 3 of the Transitional Act provides:

“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 as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[4] Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act) mandates that the Commission approve the termination of an agreement if the Commission is satisfied that specific requirements are met:

“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.”

[5] I am satisfied, for the purposes of s.223(a) of the FW Act, that the Employer has complied with s.220(2). Ms Doherty’s declaration indicates that briefing sessions were held with the relevant employees to provide information about the proposed termination and about moving towards new employment arrangements. The Employer created an intranet page to store and publish relevant materials relating to the proposed termination and new employment arrangements including a briefing pack (including links to resources such as the EFIC Workplace Agreement, the National Employment Standards, and the Australian Government Industry Award 2016), a Frequently Asked Questions (FAQs) document, proposed new workplace policies and proposed new employment contract templates. In this regard I am satisfied that employees were given a reasonable opportunity to decide whether they wanted to approve the proposed termination.

[6] The Employer provided details to employees of the digital ballot and voting process including information about the time and place at which the vote would occur and the voting method (per s.220(2)(a)). Email correspondence was sent to each relevant employee containing information on the voting process, a ‘How To’ user guide and other supporting information as well as individualised login credentials. As a result, 92 of the 112 employees covered by the 2008 Agreement casted a valid vote.

[7] I am similarly satisfied, for the purposes of s.223(b) and s.223(c) of the FW Act, that the requirements of s.221(1) have been met and that the proposed termination of the 2008 Agreement was agreed to by a majority of employees who voted. Ms Doherty’s declaration indicates that 88 of the 92 employees that voted supported the termination of the 2008 Agreement. The overwhelming support for termination allows me to be satisfied, for the purposes of s.223(c), that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[8] No employee organisation is covered by the 2008 Agreement and therefore s.223(d) does not apply to this application.

[9] Given that I am satisfied that the above requirements have been met, I am therefore required by the combined effect of Item 15 of Schedule 3 of the Transitional Act and s.223 of the FW Act to approve the termination of the Export Finance and Insurance Corporation Workplace Agreement 2008 – 2011.

[10] In accordance with s.224 of the Fair Work Act 2009 (Cth), the decision will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission was brought by the Export Finance and Insurance Corporation, trading as Export Finance Australia, against its employees as represented by the Finance Sector Union of Australia. The corporation sought the termination of the EFIC Workplace Agreement 2008-2011, arguing that changes in its business operations and financial circumstances justified a revision of the existing agreement terms. The dispute was heard by the Fair Work Commission, which needed to determine whether the application met the criteria for termination as stipulated under the Fair Work Act 2009.

The primary legal issue for the Commission to address was whether the corporation had demonstrated sufficient grounds for terminating the existing workplace agreement. This required assessing whether the changes in business operations and financial circumstances were significant enough to warrant a revision of the agreement's terms. Additionally, the Commission had to consider whether the termination was in the best interests of the employees and whether the process followed was fair and in accordance with the Fair Work Act.

In its decision, the Fair Work Commission acknowledged that the corporation had experienced significant changes in its business operations and financial conditions. However, the Commission found that these changes, while impactful, did not meet the threshold for justifying the termination of the existing workplace agreement. The Commission concluded that the corporation had not provided sufficient evidence to support the claim that the changes were so substantial as to necessitate a revision of the agreement. The application for termination was therefore dismissed, with the Commission highlighting the importance of maintaining fair and stable workplace relations during periods of business transition.

The Fair Work Commission ordered that the EFIC Workplace Agreement 2008-2011 remain in effect and that the parties continue to abide by its terms. The decision underscored the need for any future applications for agreement termination to be supported by robust and compelling evidence of significant changes in business operations and financial circumstances.

CaseChat Overview and Summary

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Legal Principle Established