Finance Sector Union of Australia
[2012] FWA 5951
•13 JULY 2012
[2012] FWA 5951 |
|
DECISION |
Fair Work Act 2009
s.236—Majority support determination
Finance Sector Union of Australia
(B2012/919)
DEPUTY PRESIDENT SMITH | MELBOURNE, 13 JULY 2012 |
Bargaining - majority support determination.
Introduction
[1] This is an application by the Finance Sector Union of Australia (FSU) for a majority support determination for employees in Technology Testing Services of the Australia and New Zealand Bank Ltd (ANZ). The employees are currently bound by the ANZ Collective Employment Agreement 2010-2012 1. That Agreement has a nominal expiry date of 20 September 2012.
[2] ANZ has decided that its IT testing and environmental management services will be transferred to a company called Capgemini by 1 September 2012. ANZ is of the view that this is a transfer of business and therefore clause 5.10.(a) of the Agreement applies. The FSU seek to bargain on the terms and conditions of existing employees with a view to having an industrial agreement which captures a number of existing terms and conditions of employment which are not currently in the Agreement. If clause 5.10. of the Agreement does apply then employees who do not transfer to Capgemini have the potential of being declared redundant without an entitlement to any redundancy benefit. This is so because ANZ believes that it has offered acceptable alternative employment.
[3] ANZ oppose the making of the order on the basis that:
- There is no realistic possibility of an agreement being concluded before the transfer date of 1 September 2012.
- It would be inappropriate to commence bargaining and usurp the present consultative arrangements.
- The employees are not fairly chosen.
The Legislation and argument
[4] Section 236 of the Fair Work Act 2009 (Cth) (the Act) provides who may apply for a majority support determination. No issue arises as to the standing of the FSU to make the application. Section 237 governs the circumstances in which a determination must be made.
“237 When FWA must make a majority support determination
Majority support determination
(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[5] To begin, I am satisfied that an application has been made and so consideration must be given to the matters set out in s.237(2).
[6] For the FSU it is argued that a majority of employees who are employed by the employer and who will be covered by the agreement want to bargain. The FSU tendered a petition signed by a majority of employees in the Technology Testing Services area. No issue is raised by ANZ on this matter.
[7] I am satisfied that s.237(2)(a) is satisfied. Similarly, no controversy arises in relation to s.237(2)(b) in that ANZ has not agreed to bargain. In relation to s.237(2)(c), the FSU argue that the group is fairly chosen as they constitute an operationally and organisationally distinct group. That this is so, is demonstrated by the fact that ANZ has itself identified the group in its totality for outsourcing.
[8] ANZ argue that the group of employees are not fairly chosen because the only reason related to the proposed outsourcing. This group, it was submitted, had been a part of general bargaining and had not been previously separately identified. ANZ also submitted that to make a majority support determination would cut across the Agreement requirement to consult in relation to the introduction of major workplace change. Finally, ANZ submitted that the Tribunal should not make a determination in circumstances where there was no practical purpose or utility 2.
[9] In response, the FSU argued that its members wanted to bargain in relation to the terms and conditions to afford them some protection when that part of the business was sold. Further, the process of negotiation would not hinder consultation and indeed it could be seen as a subset of the consultative process. The FSU submitted that whilst the intention was to have the transfer occur on 1 September, there was no concrete evidence that this would happen on this date as it was merely an objective. It submitted that in its experience, these matters often take longer than originally planned. FSU conceding that having such an order did not oblige the employer to agree.
[10] Evidence was given by Mr Ben Walker, Manager Global Employee Relations. His evidence expanded upon the background to the Capgemini project and the consultative process being undertaken. Further, Mr Walker gave evidence about the possible adverse interaction between a consultative and bargaining process. His evidence was that this would potentially be very confusing.
[11] Mr Walker also raised the possible difficult interaction between the negotiations impacting upon 24,000 employees and the 98 which are impacted upon by the proposed change.
Conclusion
[12] Object 3(f) of the Act provides:
“(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.”
[13] If attention is given to enterprise-level collective bargaining then there appears to be no good reason why this particular group of employees would be singled out other than because the function will be outsourced. In my view this does not outweigh the recent history of bargaining where particular groups are treated in common. To bifurcate the bargaining process to deal with a circumstance which is already comprehended in the agreement, would, in my view be inappropriate.
[14] There is a specific provision in the existing agreement to deal with the circumstances facing the employees and the focus should be on implementing this aspect of the agreement fully to deal with issues raised by employees for consideration by ANZ. The process of consultation and negotiation are different and having them run side by side could only add another layer of uncertainty to the relationship between the employer and the employees.
[15] I don’t underestimate the apprehension and concern of the employees at this change but the current agreement provides for this process and specifically allows for the bank to manage its business and provide acceptably alternative employment to employees in the event that a redundancy is in contemplation. The current circumstances have been comprehended by bargaining and the Agreement reflects that outcome.
[16] Whether or not this would be an exercise which would have no practical purpose or utility is moot. Whilst the timelines give the appearance of being unattainable; plans change.
[17] Against this background I am not satisfied that the group of employees who would be covered by the agreement are fairly chosen or that it is reasonable in all the circumstances to make the determination.
[18] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
G McConville with G Forsyth and M Johnson for the Finance Sector Union of Australia.
T Jacobs of Counsel for Australia and New Zealand Bank Limited.
Hearing details:
2012.
Melbourne:
July 6.
1 AE882924
2 S & V Nominees Pty Ltd (in Liq) v Rabobank Australia (No 2) [2011] FCA 1039 @ 6; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 @ 582
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