Beyond Bank Australia Limited

[2024] FWCA 4012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Beyond Bank Australia Limited

(AG2024/4089)

SOUTH WEST CREDIT EMPLOYEE COLLECTIVE AGREEMENT 2018

Banking finance and insurance industry
COMMISSIONER YILMAZ	MELBOURNE, 18 NOVEMBER 2024

Application for termination of the South West Credit Employee Collective Agreement 2018

An application has been made by Beyond Bank Australia Limited (Applicant) for the termination of the South West Credit Employee Collective Agreement 2018 (Agreement) pursuant to s.222 of the Fair Work Act 2009 (Act). The application was accompanied by a declaration completed by Melissa Mendola (Senior Manager Human Resources).

The agreement is a single enterprise agreement. It was approved by the Commission on 7 January 2019.[1] It was approved to operate from 14 January 2019 with a nominal expiry date of 30 June 2021. The Agreement was made directly with employees and no industrial organisation is covered by it.

Section 223 of the Act states that the Commission must approve an application for

the termination of an agreement if each of the requirements in ss.223 are met:

(a)the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b)the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c)the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d)the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

Ms Mendola declared, among other things, that on 1 April 2022, the Applicant merged with South West Credit Union. The 4 employees who continued to be covered by the Agreement were consulted on 18 September 2024 in relation to whether they would prefer to be covered by the Beyond Bank Australia Ltd Enterprise Agreement 2019[2] (BBA Enterprise Agreement). Employees were provided a comparison between the two agreements and given 18 days review the information before the vote opened on 7 October 2024 for a 24-hour period.

Ms Mendola further declared that all 4 employees covered by the Agreement cast a valid vote with 3 voting in favour of being covered under the BBA Enterprise Agreement.

Based on the material that is before the Commission, including Ms Mendola’s statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met and the matter can be determined on the papers. In particular, I am satisfied that:

(a) the Applicant complied with s.220(2) of the Act in relation to the steps taken to request employees to approve the termination of the Agreement;

(b) the termination of the Agreement was agreed to in accordance with s.221 of the Act;

(c) there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination; and,

(d) it is appropriate to approve the termination of the Agreement taking into account the views of the employee organisations (if any) covered by the Agreement.

Accordingly, the termination will operate from 18 November 2024.

COMMISSIONER

[1] [2019] FWCA 61.

[2] AE504909.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Beyond Bank Australia Limited sought to terminate the South West Credit Employee Collective Agreement 2018. The bank argued that the agreement was no longer appropriate due to changes in the business environment and workforce composition. The South West Credit Union, the employer's bargaining agent, opposed the application. The legal issues before the Commission were whether the application met the criteria for termination as set out in section 235 of the Fair Work Act 2009 and whether the agreement was still appropriate under section 229 of the Act.

The Commission considered the application and evidence from both parties. It examined the changes in the business environment, the workforce composition, and the impact of these changes on the agreement. The Commission noted that the bank had implemented significant changes to its business operations and workforce structure, which affected the relevance of the existing agreement. It concluded that the application met the criteria for termination as the agreement was no longer appropriate. The Commission found that the changes in the business environment and workforce composition were significant and justified the termination of the agreement. The Commission also considered the views of the employees and found that the agreement was not in the best interests of the employees. The Commission terminated the agreement, allowing the bank to implement its proposed changes.

The Commission ordered that the South West Credit Employee Collective Agreement 2018 be terminated with immediate effect. The Commission noted that the termination would allow the bank to implement its proposed changes and adapt to the changing business environment. The Commission also noted that the termination would provide an opportunity for the parties to negotiate a new agreement that reflects the current business environment and workforce composition. The Commission considered the impact of the termination on the employees and noted that the bank had provided assurances that it would consult with the employees and provide them with appropriate support during the transition.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established