Perpetual Trustees Australia Limited t/as Perpetual Limited

[2013] FWCA 9961

[2013] FWCA 9961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Perpetual Trustees Australia Limited t/as Perpetual Limited
(AG2013/10364)

PERPETUAL ENTERPRISE AGREEMENT 1996

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 19 DECEMBER 2013

Application for termination of the The Perpetual Enterprise Agreement 1996.

[1] This is an application filed by Perpetual Trustees Australia Limited t/as Perpetual Limited (the ‘applicant’) pursuant to s 225 of the Fair work Act 2009 (the ‘Act’) to terminate the Perpetual Enterprise Agreement 1996 [AG792965] (the ‘Agreement’). Relevantly, the Agreement passed its nominal expiry date fourteen years ago.

[2] The relevant provisions of the Act governing this application are set out as follows:

‘225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.’

[3] The application was accompanied by a statutory declaration of Ms A Newman, Senior Manager - PAC Services. She said that the nine affected employees had been notified of the applicant’s intention to terminate the Agreement and the relevant effects on 25 November 2013. In an online ballot conducted on 29 November 2013, 6 of the 7 employees who voted, agreed that the Agreement should be terminated.

[4] Ms Newman deposed that the applicant had recently reviewed its employment arrangements and identified that the Agreement covered only nine employees of the applicant - less than 1% of its total workforce. A further review of the Agreement itself in November 2013 identified that a number of its provisions were deemed to be no longer relevant to the applicant’s business. She specifically identified the overtime entitlements of the Agreement and noted that none of the nine employees had received overtime entitlements for eighteen months. The applicant also intended to rationalise the number of industrial instruments covering its workforce.

[5] Ms Newman said that the applicant had identified that there would be two substantive changes to the relevant employees’ terms and conditions should the Agreement be terminated: firstly, the removal of annual leave loading of 17.5% and annual increases in the base rates of pay of 2.5%. However, Ms Newman said that the base rates of pay of the affected employees would be adjusted to factor in the removal of annual leave loading. This would result in greater superannuation entitlements. It was also the applicant’s intention to amend the terms and conditions of employment of the affected employees to ensure that annual increases of 2.5% are guaranteed.

[6] At a hearing of the matter on 18 December 2013, Ms C Robinson, Solicitor and Mr J Arndt, Solicitor appeared with Mr A Fischer for the applicant. Mr D Peddie appeared on behalf of the Finance Sector Union of Australia (the ‘Union’) which had indicated in earlier correspondence with my Chambers that it opposed the termination of the Agreement. Ms Robinson outlined the application and submitted that all of the legislative requirements for termination of the Agreement have been satisfied. She submitted that the long period of time since the Agreement expired, fortified the case for it to be terminated and that there were no sufficient public interest grounds for the Commission to refuse the application. Mr Peddie said that while he had some concerns as to whether the affected employees fully understood the issues put before them and the enforceability of terms preserved by policies and common law contract, the Union now had a neutral view of the application.

[7] Having considered the parties’ submissions and upon reviewing the application and the statutory declaration of Ms Newman, I am satisfied that all of the requirements of the Act, in particular, ss 225 and 226, are met. I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Perpetual Enterprise Agreement 1996 [AG792965] will be terminated. Pursuant to s 227 of the Act and in accordance with the request of the applicant, the termination is to take effect on and from 31 December 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AG792965  PR545890>