National Australia Bank

[2019] FWC 3828

[2019] FWC 3828

FAIR WORK COMMISSION

DECISION

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

National Australia Bank
(AG2019/1442)

Banking finance and insurance industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 JUNE 2019

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

[1] The National Australia Bank Limited (NAB) has applied under s.318 of the Fair Work Act 2009 (Act) for an order relating to a transfer of business and a transferable instrument, namely the NAB Enterprise Agreement 2006 – 2009 (Transferable Instrument). That agreement is one certified by the Australian Industrial Relations Commission (AIRC) under s.170LT of the Workplace Relations Act 1996, which is now a transitional instrument that continues to operate in accordance with Part 2 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Finance Sector Union (FSU) is covered by the Transferable Instrument.

[2] Eight NAB employees who are transferring employees (Transferring Employees) and covered by the Transferable Instrument are now engaged to work in a part of NAB’s business where other employees of NAB are covered by the NAB Enterprise Agreement 2016. The Transferring Employees are integrated into NAB’s existing incident/events team. The work performed by the Transferring Employees is the same as work undertaken by other employees in the team who are covered by the NAB Enterprise Agreement 2016.

[3] The relevant transfer of business occurred as a consequence of IBM Australia Client Services Pty Ltd (IBM) terminating of the employment of the Transferring Employees, the subsequent engagement by NAB of the Transferring Employees, the performance of work at NAB by the Transferring Employees being transferring work within the meaning of s.311(1)(c) of the Act and an earlier decision by NAB to cease an outsourcing arrangement with IBM in circumstances described in s.311(5).

[4] The FSU supports the application for an order. NAB and the FSU filed joint submissions in support of the order.

[5] Without recounting those submissions or the material in the application and documents that accompany the application, I am persuaded, having regard to those submissions together with the material set out in the original application and in the witness statement of Ms Natalie Southey, the head of operations at NAB, that the order sought should issue taking into account the matters in s.318(3) of the Act. Briefly on the material I am satisfied that:

•  the Transferring Employees appear to support the making of the order as does NAB;

•  if the order were made, the terms and conditions under which the Transferring Employees would be employed appear superior on an overall basis to those under the Transferable Instrument;

•  the nominal expiry date of the Transferable Instrument has long since passed;

•  the existence of the Transferable Instrument creates unnecessary administrative burdens for NAB as well as unnecessary industrial dislocation by reason of the existence of differing employment conditions for employees performing the same work under the same conditions;

•  though the Transferrable Instrument has a degree of business synergy with the workplace (it having applied to the business when certified) and to the NAB Enterprise Agreement 2016. The later agreement is the third iteration of enterprise agreements made by NAB covering the relevant employees and is more compatible with NAB’s current operations than the Transferrable Instrument. Self-evidently, the Transferrable Instrument it outdated having been certified by the AIRC in February 2007.

•  there are no matters about which I am aware that would render the making of the order contrary to the public interest. The goals that would be achieved by making the order, namely of efficiency, removal of administrative burdens, the achievement of industrial harmony and improvements in the employment conditions for the Transferring Employees, are all concordant with the public interest.

[6] I propose to make the order which will take effect today. An order giving effect to this decision is separately issued in PR708758.

DEPUTY PRESIDENT

Determined on the papers.

Joint written submissions: 22 May 2019

Printed by authority of the Commonwealth Government Printer

<AG846922  PR708960>