Humm BNPL Ltd (Formerly Known As Certegy Ezi-Pay Pty Ltd) T/A Humm BNPL Ltd
[2023] FWCA 1392
•16 MAY 2023
| [2023] FWCA 1392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Humm BNPL Ltd (Formerly Known As Certegy Ezi-Pay Pty Ltd) T/A Humm BNPL Ltd
(AG2023/1020)
CERTEGY ENTERPRISE AGREEMENT 2011
| Banking finance and insurance industry | |
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 16 MAY 2023 |
Application for termination of the Certegy Enterprise Agreement 2011
On 12 April 2023 Humm BNPL Ltd (formerly known as Certegy Ezi-Pay Pty Ltd) (the applicant employer) made an application to terminate the Certegy Enterprise Agreement 2011[1] (Agreement) under s 222 of the Fair Work Act 2009 (Cth) (FW Act).
Section 222 concerns applications for termination where termination has been agreed by employees.
This matter was the subject of a hearing on 15 May 2023 at which time I heard from Ms Stephanie Carman, People and Communications Director of the Humm Group, who appeared with other company officers.
I heard the matter in conjunction with a related application by an associated entity (AG 2023/1022).
No employees or other employee interests appeared.
I issued directions on 17 April 2023. In accordance with my directions, employees with an interest in the matter were provided an opportunity to indicate whether any objection would be taken to the termination application or if they sought to be heard.
No objection has been indicated by any employees covered by the Agreement and no employee has sought to be heard.
I have considered the material provided in the application and by Ms James pursuant to s 223 of the FW Act. This includes the Form F24A – declaration in support of termination of an enterprise agreement (Form F24A) lodged with the Commission on 12 April 2023. I have also considered the statutory declaration of Ms Carman dated 8 May 2023.
I note that in the Form F24A Ms James declares that:
· on 16 March 2023 the applicant employer emailed all employees involved with an explanation for the proposed termination of the Agreement and a FAQ document. The email also confirmed the date, time, method and duration of the voting process for the Agreement termination;
· on 16 March 2023 the applicant employer posted a note on the employee intranet to provide an update to all employees of its intention to terminate the Agreement. In its note, it advised employees to speak to their leaders or people partner with any questions;
· on 21 March 2023 the applicant employer emailed all employees involved with a copy of the proposed employment terms that would apply if the Agreement were to be terminated;
· the applicant employer emailed all employees a link to an online voting form on 22 March 2023. Voting opened that day. The online form provided employees information about enterprise agreements generally and why employees had been asked to vote on the termination of the Agreement. The form also contained information as to where a copy of the Agreement could be found. It also confirmed that voting would be closed on Wednesday 29 March 2023 at 12pm (AEDT). This email re-attached a copy of the proposed employment agreement and the FAQ document;
· on 24 and 27 March 2023 the applicant employer sent an email reminding employees that voting was open until Wednesday 29 March 2023 at 12pm (AEDT);
· on 27 March 2023 the applicant employer sent an open invitation to employees to attend a final information session on 28 March 2023 regarding the proposed termination of the Agreement; and
· by 29 March 2023 a majority of employees voted to terminate the Agreement.
In the statutory declaration lodged with the Commission on 8 May 2023, Ms Carman declared that employees were provided with the Notice of Listing, directions, Form F24A and application form as directed by the Commission.
In proceedings before me on 15 May 2023, I sought further information from the applicant employer including copies of the emails referred to in the declarations of Ms James and Ms Carman. At the Commission’s initiative, I took oral evidence from Ms Carman on the emails submitted and on matters arising.
The applicant employer submitted that the requirements of s 223 of the FW Act have been met such that the Agreement must be terminated.
Consideration
I am required to deal with this matter in accordance with the provisions of the FW Act. Section 222 provides:
“222 Application for FWC 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 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 FWC considers it fair to extend that period—within such further period as FWC allows.”
The Agreement is a single enterprise agreement. It was approved by the Commission on 9 June 2011. It was approved to operate from 16 June 2011 with a nominal expiry date of 28 February 2015.
The applicant employer is entitled to apply for termination of the Agreement under s 222 of the FW Act. Whilst the named employer at the time the Agreement was made was Certegy Ezi-Pay Pty Ltd, subsequent re-branding of the business resulted in the employer being the current applicant, Humm BNPL Ltd.
The application was made within time. It was accompanied by the relevant declarations.
The formal requirements in s 222 have been met.
I now consider the substantive issues.
Section 223 provides:
“223 When 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 s 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.”
Section 223(a) is made out. On the evidence before me, I am satisfied that employees were provided a reasonable opportunity to decide whether they wanted to approve the proposed termination. Advance notice of the time and place at which the vote was to occur and of the voting method were provided. Information provided by the applicant employer on 16 and 21 March 2023 was sufficient to reasonably inform an employee on whether to vote to approve the termination.
In reaching this level of satisfaction, I take into account that after sending the aforementioned information to employees on 16 and 21 March 2023 the applicant employer conducted a further information session seven days into the eight day voting period. It did so to encourage employee participation in the vote and minimise low turnout. The evidence before me was that at this information session the applicant employer repeated the contents of the 16 and 21 March 2023 emails but provided no new information. In the circumstances, I do not consider this information session to have denied employees, in the words of s 220(2)(b), “a reasonable opportunity to decide whether they want to approve the proposed termination”. However, I observe that such steps taken by an employer during a voting period, no matter how well intentioned, have the capacity to alter the body of information available to those yet to vote from those who had by then voted. Had I found that that had occurred in this matter, it would be tolerably arguable that ss 223(a) or 223(c) had not been made out.
Section 223(b) is made out. The evidence before me establishes that a majority of employees who cast a valid vote approved the termination.
Section 223(c) is made out. Noting the observation I made concerning s 223(a), there are no other reasonable grounds for believing that employees have not agreed to the termination.
Section 223(d) does not apply as there are no employee organisations covered by the Agreement. Given that s 223(d) draws attention to the views of employees, no employees sought to be heard.
However, to the extent required by s 223(d), I am satisfied that it is appropriate to approve the termination. The evidence is that the Agreement is well past its nominal expiry date and contains redundant or out-dated provisions. The applicant employer submits that employees would be no worse off and in some instances better off by being covered by the underpinning modern award and the employer’s proposed individual contractual terms should the Agreement be terminated. Those issues were notified to employees in advance of the vote and were a matter for employee assessment when casting a vote.
Conclusion
I am satisfied as to each of the matters contained in ss 222 and 223 of the FW Act.
It is appropriate that there be a short period of prospectivity before the Agreement is terminated to enable employees to be advised of this Decision.
The termination will come into effect from 12.01am on 23 May 2023. An Order[2] to this effect will be issued.
DEPUTY PRESIDENT
Appearances:
Ms S Carman with Ms C Seppelt, Ms D McCrone and Ms S Kostanje, of and on behalf of Humm BNPL Ltd
Hearing:
2023
Adelaide (by audioconference)
15 May
[1] [2011] FWAA 3650
[2] PR761901
Printed by authority of the Commonwealth Government Printer
<AE886139 PR761900>
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