Break O'Day Community Financial Services Ltd and Others
[2024] FWCA 3687
•23 OCTOBER 2024
| [2024] FWCA 3687 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.216CA - Application by an employer for approval of a variation of a cooperative workplace agreement to add employer and employees
Break O'Day Community Financial Services Ltd and Others
(B2024/1321)
BENDIGO COMMUNITY BANK COOPERATIVE WORKPLACE AGREEMENT 2023 - 2026
| Banking finance and insurance industry | |
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 23 OCTOBER 2024 |
Application for variation of the Bendigo Community Bank Cooperative Workplace Agreement 2023-2026.
This matter concerns an application made on behalf of 16 employers, namely:
· Break O'Day Community Financial Services Ltd (ABN 614 142 853);
· Cardwell & District Community Enterprises Limited (ABN 127 060 146);
· Circular Head Community Financial Services Ltd (ABN 626 751 157);
· Clovelly Community Financial Services Limited (ABN 097 378 740);
· Collie & Districts Community Financial Services Limited (ABN 096 536 355);
· Elwood Community Financial Services Limited (ABN 087 802 775);
· Ettalong Beach Financial Services Limited (ABN 110 069 120);
· Fremantle Community Financial Services Limited (ABN 114 925 174);
· Grampians Regional Community Enterprises Limited (ABN 139 414 234);
· Indigo Community Development Group Limited (ABN 146 766 725);
· Keppel Financial Services Limited (ABN 113 396 768);
· Mandurah Community Financial Services Limited (ABN 098 081 308);
· Neerim District Financial Services Limited (ABN 091 832 923);
· Northern Victoria Finances Limited (ABN 091 514 966);
· Pambula and District Community Development Limited (ABN 128 796 458); and
· Robe Community Financial Services Limited (ABN 101 974 887).
I shall refer to these employers collectively as the Applicant Employers.
The Applicant Employers have made an application to the Commission for approval of a variation to the Bendigo Community Bank Cooperative Workplace Agreement 2023-2026 (Agreement) to add each of them and their relevant employees to the Agreement. The application is made under s.216CA of the Fair Work Act 2009 (Cth) (Act). This provision is found in Division 7 of Part 2-4 of the Act.
The Agreement presently covers over 150 community bank employers operating in the banking and financial services industry. These community banks operate under franchise arrangements with the Bendigo and Adelaide Bank Limited (Bank) and, in effect, provide the Bank’s retail network in each of their communities. The Applicant Employers have the same relationship with the Bank but are not presently covered by the Agreement.
The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Finance Sector Union of Australia (FSU) are covered by the Agreement and have both consented to the application.
The Bank is not covered by the Agreement but rather has its own enterprise agreement.[1]
The Bank was the bargaining representative for each of the original community bank employers covered by the Agreement. It was also formally appointed to act on behalf of each of the Applicant Employers in relation to this application.
Section 216CA of the Act provides as follows:
“216CA Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees
Application for approval
(1) If a variation of a cooperative workplace agreement is made as mentioned in section 216C, the employer must apply to the FWC for approval of the variation
Material to accompany the application
(2) The application must be accompanied by:
(a)a signed copy of the variation; and
(b)a copy of the agreement as proposed to be varied; and
(c)any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a)within 14 days after the variation is made; or
(b)if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
Signature requirements
(4) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations.”
Section 12 of the Act defines a cooperative workplace agreement as follows:
“cooperative workplace agreement: a multi-enterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.
The Agreement was made on 16 February 2024 and was later approved by the Commission on 22 March 2024.[2] It is a multi-enterprise agreement, and I am satisfied that there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the Agreement immediately before the Agreement was made. Accordingly, the Agreement is a cooperative workplace agreement for the purposes of s.216CA of the Act.
Section 216C of the Act states:
“216C Variation of cooperative workplace agreement to add employer and employees
(1) A variation of a cooperative workplace agreement, that has the effect that an employer that was not covered by the agreement will be covered by it, may be made jointly by the employer and the affected employees.”
The term “affected employees” has varying meanings depending on the application being made. For the purposes of this application, the “affected employees” are the employees employed at the time the variation is made who will be covered by the agreement if the variation is approved by the Commission.
The application was supported by a Form F23IA ‘Employer’s Declaration’ and other relevant documentation and procedural requirements as required by s.216CA(2)-(4). This included comprehensive information about the process followed by each of the Applicant Employers to inform their relevant employees about the proposed variation and its consequences, and information about the votes conducted at each workplace to make the agreed (joint) variation. I have considered these materials in determining this application.
Section 216CAA of the Act requires that the terms of the variation must be explained to the affected employees before the Applicant Employers request that they approve a proposed variation. I am satisfied that the Applicant Employers took all reasonable steps to ensure that the terms of the agreement as proposed to be varied, and the effect of those terms, were explained to the affected employees and that this was done prior to requesting that the affected employees approve the proposed variation. I am further satisfied that this was done in accordance with s.216CA(1)(b), having regard to the matters set out in s.216CAA(2).
If the matters in s.216CB of the Act are met, I must approve the proposed variation of the Agreement. Section 216CB provides:
“216CB When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees
(1) If an application for the approval of a variation of a cooperative workplace agreement is made under section 216CA, the FWC must approve the variation if the FWC is satisfied that:
(a)the employers, and any employee organisations, covered by the agreement before the variation was made have had an opportunity to express to the FWC their views (if any) on the variation; and
(b)the affected employees have voted on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and
(c)the variation has been genuinely agreed to by the affected employees in accordance with section 216CC; and
(d)it is not contrary to the public interest for the employer and the affected employees to be covered by the agreement.
(2) Despite subsection (1), the FWC must not approve the variation if:
(a)the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or
(b)as a result of the variation, the agreement would cover employees in relation to general building and construction work.
(3) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to any of the affected employees.”
In deciding to approve the proposed variation of the Agreement, I am satisfied that all of the relevant requirements under s.216CB have been met. I will briefly deal with each of these matters in turn below.
Have the employers and employee organisations had an opportunity to express their views?
Section 216CB(1)(a) requires that the employers and any employee organisations covered by the relevant enterprise agreement before the variation was made have had an opportunity to express their views to the Commission on the variation. As part of their application to the Commission, the Applicant Employers provided a copy of an email that was sent to the community bank employers that are currently covered by the Agreement. That email provided instructions to those employers on how to access a copy of the application and supporting declaration. The email also gave an opportunity to the employers to express their views on the application and explained the process by which this could be done. No responses have been provided to the Commission and I am satisfied that each relevant employer has therefore had an opportunity to express their views.
The employee organisations covered by the agreement are the ASU and the FSU. The ASU and the FSU were each afforded an opportunity to express their views directly to the Commission in relation to the application. As noted above, both the ASU and the FSU are supportive of the application to vary the Agreement to add the Applicant Employers and their relevant employees. For those reasons, I am also satisfied that the employee organisations have had an opportunity to express their views.
Have the affected employees voted on whether to approve the variation, and have a majority approved the variation?
I am satisfied that the affected employees have voted on whether to approve the variation to the agreement. I am further satisfied that a valid majority of those employees at each relevant employer voted to approve the variation in accordance with s.216CB(1)(b).
I observe that in relation to one of the employers that participated in this process, the required majority employee support for the variation was not obtained. That employer was, correctly, not included in this application or the proposed variation.
Has the variation been genuinely agreed to by the affected employees?
For the purposes of s.188 of the Act, as modified by ss.216CB(1)(c) and 216CC, I find that the variation to the Agreement was genuinely agreed to by the affected employees.
Is the variation not contrary to the public interest?
Section 216CB(1)(d) provides, in effect, that it must not be contrary to the public interest for the Applicant Employers and affected employees to be added to the Agreement. There would not appear to be any circumstances related to the application that would indicate that the variation of the Agreement as proposed would be contrary to the public interest.[3] I also observe that the impact of the variation is to have a consistent set of beneficial employment conditions apply across the employers who are undertaking a related community service, including many in regional areas of Australia. There is also nothing to indicate that the variation would negatively impact any broader economic or competitive considerations or be inconsistent with the objects of the Act. I am satisfied that the variation is not contrary to the public interest.
Other matters
I observe for completeness that the variation does not apply to general building or construction work. I further observe that the Applicant Employers are not specified in a supported bargaining authorisation or a single interest employer authorisation. Accordingly, s.216CB(2)-(3) is not enlivened. There was also no matter that would permit me to refuse the approval of the variation under s.216CD of the Act.
Conclusions
Accordingly, I am satisfied that the requirements of s.216CA are met and the provisions of the Act that would require me to refuse the variation do not apply. For those reasons, I approve the variation. The consolidated version of the Agreement, as varied, is attached to this decision.
Section 216CE provides that a variation operates from the day specified in the decision to approve the variation. The Agreement provides for some significant changes to existing conditions, and payroll and related modifications will be required. On that basis, the Applicant Employers have sought a delay in the commencement of the variation. This was not opposed. Accordingly, the date I have specified for the variation to operate is on and from 19 November 2024.
DEPUTY PRESIDENT
[1] Bendigo and Adelaide Bank Enterprise Agreement 2023-2026.
[2] [2024] FWCA 1016.
[3] See Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [40].
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