Australian Mutual Bank Ltd

[2021] FWCA 6231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Mutual Bank Ltd
(AG2021/7560)

AUSTRALIAN MUTUAL BANK LTD ENTERPRISE AGREEMENT 2021-2024

Banking finance and insurance industry
COMMISSIONER MIRABELLA	MELBOURNE, 12 OCTOBER 2021

Application for approval of the Australian Mutual Bank Ltd Enterprise Agreement 2021-2024

[1] The Australian Mutual Bank Ltd has made an application for approval of an enterprise agreement known as the Australian Mutual Bank Ltd Enterprise Agreement 2021-2024 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.1.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[6] The Agreement was approved on 12 October 2021 and, in accordance with s. 54, will operate from 19 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Australian Mutual Bank Ltd, applied to the Fair Work Commission for the approval of its Enterprise Agreement 2021-2024. The agreement aimed to regulate the employment conditions of the bank's employees. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly in terms of the procedural fairness and the directness test. The Fair Work Commission was the tribunal tasked with determining these legal issues.

The primary legal issues before the Commission were whether the agreement was properly made and if it complied with the procedural fairness and directness tests. Procedural fairness required the employer to have genuinely bargained with the employees' representative, ensuring a fair process. The directness test examined whether the agreement directly related to the employees' terms and conditions of employment. The Commission also had to consider if any terms in the agreement unfairly disadvantaged employees.

The Commission found that the agreement had been made through genuine bargaining, satisfying the procedural fairness requirement. It also determined that the agreement directly related to the employees' terms and conditions, passing the directness test. The Commission noted that the agreement contained a mix of both substantive and procedural terms, which was permissible under the Act. Consequently, the Commission approved the agreement as it met all the statutory requirements.

The Fair Work Commission approved the Enterprise Agreement 2021-2024, confirming that it complied with the Fair Work Act 2009. The decision was based on the finding that the agreement was genuinely bargained and directly related to the employees' terms and conditions. This approval ensures the agreement can be implemented, providing a stable framework for the employment conditions of the bank's employees for the next four years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established