Westpac Banking Corporation

[2011] FWA 6146

[2011] FWA 6146

FAIR WORK AUSTRALIA

DECISION

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

Westpac Banking Corporation
(AG2011/1892)

DEPUTY PRESIDENT SAMS SYDNEY, 12 SEPTEMBER 2011

Orders relating to instruments covering transferring employees in agreements - orders sought by consent - overwhelming support of transferring employees - orders made

[1] Westpac Banking Corporation (the applicant) has filed an application pursuant to s 318 of the Fair Work Act 2009 (the Act) seeking orders from Fair Work Australia (FWA) relating to instruments covering transferring employees in agreements. In this application, the following terms are defined as follows:

(a) BPO Services means the services set out in the BPO Service Towers under the LPSA as those services have evolved over time and were provided by HP immediately prior to 18 May 2011 or another date agreed by Westpac and HP.

(b) Employee means an employee of HP who immediately prior to the Offer Date applicable to the employee is:

(i) providing the BPO Services in a role set out in Parts A, B or C of Schedule 1 to this application (or another role as agreed by HP and Westpac), or would normally do so but for a period of leave authorised by HP; and

(ii) not serving out a period of notice of termination.

(c) Handover Date means the later of:

(i) the Scheduled Handover Date for each of the three Tranches; and

(ii) the date on which Tranche Completion occurs for each Tranche.

(d) HP means HP Enterprise Services BPA Limited (ABN 81 095 806 195).

(e) HP Agreement means The EDS (BPA) Credit Services Agreement 2004/2007.

(f) LPSA means the Loan Processing Services Agreement between Westpac, one of its subsidiaries and EDS (Business Process Administration) Pty Limited (ACN 095 806 125 (EDS), dated on or about 27 September 2001 as amended from time to time.

(g) Scheduled Handover Date means:

(i) In respect of the First Tranche, 30 September 2011;

(ii) in respect of the Second Tranche, 30 November 2011; and

(iii) in respect of the Third Tranche, 31 March 2012,

Or another date agreed between Westpac and HP.

(h) Tranche means a period during which the in-sourcing of the BPO Services from HP to Westpac will occur. First Tranche, Second Tranche and Third Tranche have corresponding meanings.

(i) Tranche Completion means the completion of the in-sourcing in respect of a particular Tranche has occurred as certified by HP and accepted by Westpac.

(j) WBC Agreement means the Westpac Group Enterprise Agreement 2010.

[2] The orders sought by the applicant are in the following terms:

“Order 1

That the EDS (BPA) Credit Services Agreement 20024/2007 will not apply to any Employees who commence employment with Westpac on and from any of the Handover Dates.

Order 2

That the Westpac Group Enterprise Agreement 2010 will apply to any Employees who accepts an offer of employment from Westpac to commence employment on and from any of the Handover Dates.

Order 3

That for the purposes of any bargaining for a new enterprise agreement to replace the current Westpac Group Enterprise Agreement 2010, the “better off overall test” will apply in the same way to the Employees who commence employment with Westpac on and from any of the Handover Dates as other Westpac employees in a similar category working in the same or similar business units.”

[3] The background to the application and the grounds of reasons in support of the application are helpfully set out in considerable detail in the documentation filed with the application. Shortly stated, some 600 employees, involved in providing loan processing services to Westpac, had previously been engaged by an outsourced company. These employees were employed under a different Agreement to the Westpac Group Enterprise Agreement 2011. Recently, Westpac decided to reassume direct employment of these employees and intends to offer employment with Westpac to all the transferring employees in 3 tranches - 7 October 2011, 30 November 2011 and 31 March 2012. In a vote to 490 employees 99.8% voted in favour of setting aside their previous Agreement in favour of the Westpac Group Enterprise Agreement 2010.

[4] At a hearing of the application on 8 August 2011, Ms D Banks, solicitor, appeared for the applicant and Ms T Talmacs appeared for the Finance Sector Union (‘the Union’).Ms Banks outlined the background to the application and relied on a detailed affidavit of Mr Michael Johnston, the applicant’s Counsel and Head of Employee Relations Legal. Ms Talmacs supported the application and said that her members in the outsourced company will be better off under the Westpac Group Enterprise Agreement.

[5] Pursuant to s 318(2) of the Act, I am satisfied that the applicant is the new employer of the transferring employees and is entitled to make this application. Section 318(3) requires FWA to consider the following matters when deciding whether to make the orders as sought:

(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] Having considered the submissions of the parties and being satisfied that the requirements of s 318(3) of the Act have been met, I see no reason why the orders sought by the applicant should not be granted. In particular, I note the overwhelming view of the employees affected, the consent of the Union and the public interest considerations in approving the orders sought.

[7] The orders will take effect from 8 August 2011. The orders will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

D Banks, solicitor, for Westpac

T Talmacs for the Finance Sector Union

Hearing details:

Sydney
August 8
2011

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