Teradata Australia Pty Ltd

[2016] FWCA 9169

[2016] FWCA 9169

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Teradata Australia Pty Ltd
(AG2015/7603)

COLLECTIVE WORKPLACE AGREEMENT - TERADATA CUSTOMER SERVICE REPRESENTATIVES 2008

Telecommunications services
DEPUTY PRESIDENT BOOTH	SYDNEY, 21 DECEMBER 2016

Application for termination of the Teradata Australia Pty Ltd Collective Workplace Agreement 2008 - Teradata Customer Services Representatives.

[1] On 9 December 2015, Teradata Australia Pty Ltd (Teradata) lodged an application for the termination of a collective agreement-based transitional instrument, Teradata Australia Pty Ltd Collective Workplace Agreement 2008 - Teradata Customer Services Representatives (the Agreement), pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] The Agreement is expressed to be binding on Teradata and all its Customer Services Representatives engaged in any of the six grades of classification specified in the Agreement.

[3] On 15 December 2015 The Association of Professional Engineers, Scientists and Managers Australia (APESMA, trading as Professionals Australia) wrote to my Chambers to inform the Commission that APESMA members were covered by the Agreement.

[4] The matter was first listed for conference before me on 8 February 2016. The conference was attended by Teradata and, with permission, its legal representative Clayton Utz as well as APESMA and employee representatives.

[5] The parties continued to hold discussions, both before the Commission and directly, over the ensuing months.

[6] Ultimately Teradata and APESMA agreed to the conduct of a vote by the Australian Electoral Commission (AEC) to ascertain the views of the relevant employees in relation to the proposed termination of the Agreement.

[7] On 8 November 2016 a postal ballot was mailed to 21 employees whose employment terms were regulated by the Agreement. These employees comprised two groups; the regional team and the local team. The question posed by the ballot was as follows:

“Do you support the re-negotiation of the current Teradata Enterprise Agreement (titled the Teradata Australia Pty Ltd Collective Workplace Agreement 2008 - Teradata Customer Services Representatives)?

By answering yes, you also confirm that you do not wish to terminate the Teradata Australia Pty Ltd Collective Workplace Agreement 2008 - Teradata Customer Services Representatives.”

[8] The Commission has been provided with the Declaration of Results published by the AEC on 25 November 2016.

[9] Of the regional team (which totalled 8 employees) all voted “No” to the question posed. Of the local team (which totalled 13 employees) one vote was excluded as the employee did not sign the form, 5 employees voted “Yes” and 7 voted “No”.

[10] Accordingly, the vote conducted by the AEC demonstrated that a majority of both the regional and local teams supported terminating the Agreement.

[11] On 9 December 2016 I received written submissions from Teradata in support of the termination of the Agreement. On 18 December I received written submissions from APESMA.

[12] APESMA’s submissions stated (in part):

“APESMA recognises the outcome of the voting process, as outlined in paragraph 40 of the Applicant’s submissions. The union and our members respect the decision of the majority of the Teradata employees balloted. On this basis APESMA does not oppose the termination of the Agreement.”

[13] In their submissions, Teradata stated that termination of the Agreement by the Commission before 21 December 2016 would allow employees covered by the Agreement to receive new contracts (with grandfathered terms) and an associated monetary bonus prior to the festive season. In their submissions, APESMA confirmed that it was also their understanding that employees covered by the agreement had been informed by Teradata that on the termination of the Agreement, they will be offered individual contracts that preserving their existing conditions of employment.

[14] Part 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument.

[15] Accordingly pursuant to s.225 of the Act and having considered the matters in s.226 of the Act I have decided to terminate the Agreement.

[16] I am satisfied that it is not contrary to the public interest to terminate the Agreement. I have taken into account the views of the employees, Teradata and APESMA and the likely effect the termination of the Agreement will have on them.

[17] In all of the circumstances I consider that the application should be granted and I terminate the Agreement.

[18] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AC316299  PR588868>