Westpac Banking Corporation t/as Westpac

[2014] FWCA 7476

[2014] FWCA 7476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Westpac Banking Corporation t/as Westpac
(AG2014/9239)

WESTPAC GROUP ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 OCTOBER 2014

Application for variation of the Westpac Group Enterprise Agreement 2013.

[1] An application has been made by Westpac Banking Corporation (‘Westpac’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for the approval of a variation to a single enterprise agreement known as the Westpac Group Enterprise Agreement 2013 (the ‘Agreement’). The Agreement currently covers approximately 31,316 employees of the following entities:

• Westpac;



• BT Financial Group Pty Limited (‘BT’);



• Asgard Wealth Solutions Limited (‘Asgard’);



• Westpac Financial Consultants Limited (‘WFCL’); and



• Westpac General Insurance Services Limited (‘WGIS’).

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr M Johnston, Head of Employee Relations and Special Counsel, HR Group Services, stated that on 4 September 2014, employees who were to be absent from work during the access period (ss 211(3)(a), 180)were sent a letter with an outline of the terms and effects of the proposed variation and a pamphlet setting out the key benefits (the ‘materials’). They were also directed to a dedicated website, at which they could access the text of the proposed variation and the relevant Awards and enterprise agreements which were said to be incorporated (the ‘website’). The following day, Ms Christine Parker, Group Executive, Human Resource & Corporate Affairs emailed all People Managers directing them to discuss the variation with employees and to utilise the materials and the website to do so. People Managers were directed either to answer questions from employees or direct them to an email address to have their questions addressed. Employees had their attention drawn to the materials and the website on 8 September 2014 via an article posted on the intranet, a further email from Ms Parker and in the weekly update email. In a ballot conducted by email and phone between 16 and 23 September 2014, 11,313 of the 12,494 employees who cast a valid vote, agreed to approve the proposed variation (ss 207, 208, 209). I am satisfied that the employees have genuinely agreed to the variation of the Agreement (ss 211(3)(c), 188). The application was lodged on 30 September 2014, therefore satisfying 210(3)(a) of the Act.

[3] In a Statutory Declaration in relation to the application (Form F23B) the Finance Sector Union of Australia (the ‘Union’) confirmed that it was a bargaining representative for one or more of its members who are covered by the Agreement, that it was entitled to represent the industrial interests of the employees who are covered by the Agreement and agreed with the statutory declaration of the Mr Johnston.

[4] A copy of the draft variation provided by the applicant is annexed to this decision and marked ‘Annexure A’. The effects of the variation include:

• An extension of the nominal term of the Agreement from 31 December 2014 to 31 December 2015;



• Replacement of references to ‘Fair Work Australia’ with ‘Fair Work Commission’;



• Further adjustments to minimum rates of pay, allowances and performance-based increases on 1 January 2015;



• Modifications to parental leave entitlements;



• A further payment in lieu of annual leave loading in 2015;



• Changes to the superannuation clause to comply with s 194 of the Act; and



• Changes to the interaction between the Agreement and a number of Awards, the terms of which are incorporated into the Agreement.

I am satisfied that the Agreement, as varied, meets the Better Off Overall Test (the ‘BOOT’) (ss 211(4), (5), 193)

[5] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210 if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[6] Having reviewed the term of the pre-approval process documentation and the proposed variation, I am satisfied that all of the requirements of the Act, in particular ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied there are no public interest grounds (let alone serious ones) for not approving the variation. Accordingly, I approve the proposed variation to the Westpac Group Enterprise Agreement 2013, in the terms of Annexure A. Pursuant to s 216 of the Act, the variation shall take effect on 21 October 2014 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, AE899079  PR556875>