Westpac Banking Corporation
[2010] FWA 8017
•20 OCTOBER 2010
[2010] FWA 8017 |
|
DECISION |
Fair Work Act 2009
s.319—Application for an order relating to instruments covering new employer and non-transferring employees in agreements
Westpac Banking Corporation
(AG2010/18036)
Banking finance and insurance industry | |
COMMISSIONER SMITH | MELBOURNE, 20 OCTOBER 2010 |
Transmission of business.
[1] By application dated 1 October 2010 Westpac Banking Corporation (Westpac) sought orders pursuant to s.319 of the Fair Work Act 2009 (the Act) to ensure that there was appropriate industrial regulation for both Westpac and HP Enterprise Services BPA Limited.
[2] On or about 27 September 2001, Westpac and EDS (Business Process Administration) Pty Limited (EDS) entered into a loan processing services agreement (LPSA). EDS is now known as HP Enterprise Services (BPA) Limited (HP).
[3] Under the LPSA, Westpac outsourced the provision of certain services of its loan processing services division, described as “service towers”. One of the service towers is the call centre service tower which involved the provisions of call centre services in Adelaide.
[4] In March 2010, Westpac and HP held joint workshops and discussions to explore options for restructuring certain aspects of the commercial arrangements between them under the LPSA, including whether or not they could migrate back to Westpac certain services performed by HP.
[5] Westpac and HP subsequently agreed that the outsourcing of the disengaged services would cease and be assumed by Westpac.
[6] There are currently 60 employees who provide the disengaged services and Westpac will make offers of employment to these employees to commence employment on the handover date. Currently, these employees are covered by the EDS (BPA) Credit Services Agreement 2004/2007.
[7] There will be a transfer of business for the purpose of s.311 of the Fair Work Act 2009 (the Act) if any of the employees accept Westpac’s offer of employment. Those employees who accept Westpac’s offer will commence employment immediately, or soon after, the termination of their employment with HP and will perform transferring work for Westpac. The relevant connection between Westpac and HP is where Westpac, as the new employer or an associated entity of Westpac, ceases to outsource work to HP as the old employer under s.311(5) of the Act.
[8] The Westpac Group Enterprise Agreement 2010 applies to any Westpac employee who was covered by the Westpac Banking Corporation Award 2002.
[9] Westpac (with the support of the Finance Sector Union of Australia (FSU)) seek the following orders:
1. EDS (BPA) Credit Services Agreement 2004/2007 will not cover any employees who commence employment with Westpac Banking Corporation (Westpac) on or after the handover date.
2. The Westpac Group Enterprise Agreement 2010 will cover any employees who commence employment with Westpac on or after the handover date.
[10] In considering this application s.318 of the Act provides the matters that Fair Work Australia must take into account to approve this application. Section 318(3) of the Act provides:
“Matters that FWA must take into account
(3) In deciding whether to make the order, FWA 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.”
[11] It was submitted that discussions were held with persons who may be affected.
[12] I have examined the affidavit of Mr Timothy Fahey, General Manager, People, Product and Operations.
[13] During the proceedings the FSU argued that the draft order should also include a reference to the Westpac Banking Corporation Award 2010. It submitted that when bargaining takes place for a new agreement to replace the current Westpac Group Enterprise Agreement 2010 it should be clear that the “better off overall test” applies in the same way to all employees.
[14] Westpac did not object, in principle, to the outcome sought by FSU but questioned whether or not such an order was available under s.319 and drew on the language of s.319(c).
[15] Given that there is a period of transition to modern awards I would be concerned if any order created difficulties with this enterprise award. Without ruling on the arguments put I am content to record in this decision what I regard as an undertaking from Westpac that it will not discriminate between this group of employees and others in a similar category when bargaining takes place. That is the test which would apply to existing employees and will be the relevant test for the transferring employees.
[16] On this basis I will make the orders sought in the form provided by Westpac.
COMMISSIONER
Appearances:
J Pomeroy Solicitor on behalf of Westpac Banking Corporation.
T Talmacs for the Finance Sector Union of Australia.
Hearing details:
2010.
Melbourne/Sydney:
October, 15.
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