IMB Ltd

[2020] FWC 6079

[2020] FWC 6079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

IMB Ltd
(AG2020/3266)

HUNTER UNITED EMPLOYEES' CREDIT UNION LTD ENTERPRISE AGREEMENT 2018

DEPUTY PRESIDENT CROSS SYDNEY, 12 NOVEMBER 2020

Application for an order relating to instruments covering new employer and transferring employees.

Introduction

[1] This decision concerns an application by IMB Ltd for an order under ss.318 and 319 of the Fair Work Act 2009 (Cth) (the Act) which relate to instruments covering transferring employees in the context of a transfer of business.

[2] The application concerns a number of employees who were employed by another employer under the Hunter United Employees Credit Union Ltd Enterprise Agreement 2018 (Hunter United Agreement). The terms of the orders, which are sought under ss.318(1) and 319(1) of the Act, are as follows:

A. The Hunter United Employees Credit Union Ltd Enterprise Agreement 2018 does not, and will not, cover:

(a) IMB Ltd; and

(b) Employees of IMB Ltd whose employment transferred to IMB Ltd from Hunter United Employee Credit Union Limited as a result of a transfer of business.

B. The IMB Bank Enterprise Agreement 2018 will cover the following employees:

(a) Kierra Arms;

(b) Rebecca Bawden;

(c) Lynda Brock;

(d) Paul Anthony Cootes;

(e) Steven Edmonds;

(f) Melanie Jane Maslen;

(g) Cherise McCann;

(h) Anne Frances Nadin;

(i) Regina Nocke;

(j) Karen Piuttard; and

(k) Tiffany Pobjoy.

Transfer of the Hunter United Agreement

[3] Effective from 1 May 2020, IMB Ltd and Hunter United completed a merger under the Financial Sector (Transfer and Restructure) Act 1999 (Cth). Pursuant to that agreement, IMB Ltd received the transfer of all assets of Hunter United, and 33 employees previous employed by Hunter United immediately became employees of IMB Ltd. 19 of those transferring employees were covered by the Hunter United Agreement.

[4] A transfer of business has occurred. Therefore, pursuant to s.311(1) of the Act, the Fair Work Commission has jurisdiction to make the orders that IMB Ltd seek.

Consideration

[5] In determining the application, I must take into consideration the factors outlined in ss. 318(3) of the Act, that provides as follows:

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement--the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

[6] Each relevant employee completed a declaration, submitted to the Commission, providing that they understood the orders sought, and were satisfied that they would not be disadvantaged in relation to their terms and conditions of employment. All relevant employees were provided with the opportunity to make further submissions to the Commission in relation to the application. In these circumstances, I am satisfied that all relevant employees support the making of the orders.

[7] The Finance Sector Union of Australia (FSU) is covered by the Hunter United Agreement, and has historically represented the interests of the employees covered under that agreement. The FSU advised the Commission that they support IMB Ltd’s application.

[8] In its application to the Commission, IMB Ltd submitted that under the orders, no transferring employee would be disadvantaged. Further relevant to the consideration enlivened by s.318(3)(b), I am satisfied that the transferring employees will receive more beneficial conditions, including higher actual rates of pay.

[9] The nominal expiry date of the IMB Bank Enterprise Agreement 2018 (IMB Agreement) is 31 August 2021. The nominal expiry date of the Hunter United Agreement is 24 May 2022.

[10] In relation to ss.318(3)(d) and 318(3)(e), IMB Ltd submitted that in the event that the orders are not made by the Commission the inevitable administration of two enterprise agreements would be onerous as they set out different terms and conditions. I accept that submission.

[11] In relation to ss. 318(3)(f), IMB Ltd identified a number of key provisions that differentiated between the Hunter United Agreement and the IMB Agreement. I consider that the continued operation of the Hunter United Agreement would result in a lack of business synergy.

[12] I am satisfied that it is in the public interest to make the orders sought. This is particularly in the circumstances that the employees will not be disadvantaged overall, and that the FSU supports the orders sought.

[13] IMB Ltd operates under a formal enterprise agreement. Its agreements have passed legislative approval tests. In all of the circumstances I consider that it is appropriate to grant the application.

Conclusion

[14] For the reasons above I will make orders as sought in the application. Orders to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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