Westpac Banking Corporation

[2022] FWCA 4339

[2022] FWCA 4339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Westpac Banking Corporation

(AG2022/4616)

Westpac Group Enterprise Agreement 2023

Banking finance and insurance industry
COMMISSIONER LEE	MELBOURNE, 9 DECEMBER 2022

Application for approval of the Westpac Group Enterprise Agreement 2023

1. An application has been made for approval of an enterprise Agreement known as the Westpac Group Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Westpac Banking Corporation. The Agreement is a single enterprise Agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Finance Sector Union of Australia (FSU) raised concerns regarding clause 7 of the Agreement, the wage annualisation clause in the award and the associated reconciliation clause of the Agreement (clause 45 - Better off overall). The FSU raised the issue that the protections in clause 17 of the award to limit the number of hours worked under this arrangement were not present in the Agreement.  However, I am not satisfied that when the terms of the Agreement are considered overall that this is a concern, having regard to the considerably higher rates paid under the annualised salary arrangement and the continuing protections to not work unreasonable hours provided by s.62 of the Act.

1. A further and associated concern raised by the FSU was in relation to the manner in which the reconciliation provision in clause 45 would be undertaken given there is no requirement to record the hours worked.  I raised this concern with the Applicant by way of correspondence on 30 November 2022. The Applicant lodged submissions on 5 December 2022. The submissions provided satisfied my concerns in respect to this issue. In particular, I note that there is no material difference in the reconciliation clauses in the Commonwealth Bank Group Enterprise Agreement 2020 and the proposed Agreement (CBA matter).[1] Similar issues were raised before that Full Bench and I agree with the approach taken by that Full Bench in considering the matter.[2] Consistent with the observations by the Full Bench in the CBA matter, Westpac has a responsibility to properly implement the reconciliation procedure under clause 45 of the Agreement.

1. An employee of Westpac Banking Corporation sent correspondence to my Chambers on 7 December 2022 “to provide feedback in relation to the issue of Westpac packaged employees arrangements” and raised a concern as to obligations to work additional hours under annualised wage arrangements. I have considered the correspondence and note that I do not share that concern having regard to my consideration in the preceding paragraphs.

1. The FSU also raised an issue that the Hay Group Evaluation Methodology was incorporated by reference into the Agreement, and that no steps were taken to make that information available to employees consistent with s. 180(2) of the Act. However, I disagree that the clause that refers to the Hay Group Evaluation Methodology has the effect of incorporation by reference. Hence I do not share the concern of the FSU on that matter.

1. The Finance Sector Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

·   Clause 17.3 – Agreeing to substitute a public holiday

However, noting clause 46.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 January 2023. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Annexure A

[1] Commonwealth Bank of Australia [2021] FWCFB 3635

[2] Commonwealth Bank of Australia [2021] FWCFB 3635 at [81]-[83] and [88].

Printed by authority of the Commonwealth Government Printer

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