Westpac Banking Corporation and St. George Bank Limited v Finance Sector Union of Australia

[2010] FWA 611

[2010] FWA 611

FAIR WORK AUSTRALIA

DECISION

s.319—Application for an order relating to instruments covering new employer and non-transferring employees in agreements

Westpac Banking Corporation and St. George Bank Limited
v
Finance Sector Union of Australia
(AG2010/4280)

COMMISSIONER SMITH SYDNEY, 29 JANUARY 2010

Transmission of business.

[1] By application dated 22 January 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 St. George Bank Limited (St. George).

[2] Briefly the background to the application is that on 1 December 2008 Westpac and St. George merged and St George became a division of the Westpac Group. Both Westpac and St George are Authorised Deposit-taking Institutions.

[3] It is proposed that Westpac and St George will become a single Authorised Deposit-taking Institution (ADI) under the Finance Sector (Business Transfer and Group Restructure) Act 1999 (Cth). The target date for moving to a single ADI is 1 March 2010.

[4] As a result of moving to a single ADI there will be a transfer of business from St. George to Westpac for the purpose of s.311 of the Act. It is the desire of both Westpac and the Finance Sector Union of Australia (FSU) that the relevant industrial instruments for each previous institution remain.

[5] Relevantly, section 319 provides:

“Orders relating to instruments covering new employer and non-transferring employees

……………………..

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.

[6] To assist in matters which must be taken into account Westpac provided an affidavit of Mr Ross Miller, General Manager, Human Resources at St George. I have examined that affidavit.

[7] Each of the matters which must be taken into account have been dealt with in the Mr Miller’s affidavit.

[8] Against the background of the affidavit of Mr Miller, the submission of Westpac and the FSU on the day I was satisfied that the provision s.319(3) of the Act were satisfied and I announced that an order would issue. That order is PR993062.

COMMISSIONER

Appearances:

J Fox of Counsel on behalf of Westpac Banking Corporation and St. George Bank Limited.

T Talmacs for the Finance Sector Union of Australia.

Hearing details:

2010.

Sydney:

January, 28.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR993093>