Cmla Services Pty Ltd v Finance Sector Union of Australia

[2021] FWC 5054

[2021] FWC 5054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

CMLA Services Pty Ltd
v
Finance Sector Union of Australia
(AG2021/161)

Banking finance and insurance industry
COMMISSIONER MCKINNON	MELBOURNE, 16 AUGUST 2021

Application to vary transferable instruments – whether variations can and should be made.

[1] This decision is about whether changes should be made to an enterprise agreement that has transferred from one business to another following a transfer of business for the purposes of the Fair Work Act 2009 (Cth) (the Act).

[2] In late 2017, AIA Group Limited agreed to purchase CommInsure, a life insurance business. CommInsure was previously owned and operated by the Commonwealth Bank of Australia (CBA), Colonial Mutual Life Assurance Society Limited and Commonwealth Insurance Limited (together, the CommInsure entities). For reasons largely related to a regulatory approval process, the purchase did not complete until 1 April 2021. CommInsure is now operated by a subsidiary of AIA Group, CMLA Services Pty Ltd.

[3] One consequence of the business purchase was a series of transfers of business from the CommInsure entities to CMLA Services. The transfers occurred in three tranches – the first on 1 November 2019 from each of the CommInsure entities to CMLA Services; the second on 29 January 2021 from the CBA to CMLA Services; and the third on 1 April 2021, again from the CBA to CMLA Services. There are 729 transferring employees who have transferred from the CommInsure entities to CMLA Services over the period.

[4] The transfers of business have meant that CMLA Services is now covered by the Commonwealth Bank Group Enterprise Agreement 2016 in relation to the transferring employees. CMLA Services seeks to vary the Agreement to reflect its status as an employer who is covered by the Agreement as well as to relieve it of certain obligations it says CMLA Services cannot meet.

[5] CMLA Services submits that the changes can be made under the Actbecause they:

1. remove ambiguities that have arisen because of the transfer of business about how a term of the Agreement operates (section 320(2)(b) of the Act), and/or

2. remove terms that are no longer capable of meaningful operation (section 320(2)(a) of the Act).

[6] The Finance Sector Union of Australia (the Union) represents at least some of the transferring employees. The Union supports some of the proposed changes to the Agreement but opposes others.

[7] The question is whether the changes can and should be made.

The proposed changes and their status

[8] The proposed changes to the Agreement are summarised in the table below, as is the position of the Union in relation to the changes.

Proposed change	Section	Agreement clause	Description	Status
1	320(2)(b) – ambiguity	Division A, clauses 4(e) and 5(a)	New transferring employees to be covered by Divisions A and B of the Agreement	Agreed
2	320(2)(b) – ambiguity	Division A, clauses 4(e) and 5(a)	Existing transferring employees to be covered by Division A and the relevant applicable Division	Agreed
3	320(2)(a) – no longer capable of meaningful operation	Division A, clause 20(b)	Choice of superannuation fund in clause 20(b): inclusion of CMLA Services’ nominated default fund	Agreed
4	320(2)(a) – no longer capable of meaningful operation	Division B, clause 5.1	Removal of entitlement to fee-free banking with the CBA	Opposed
5	320(2)(a) – no longer capable of meaningful operation	Division B, clause 13.8	Removal of entitlement to retain certain banking benefits upon retrenchment	Opposed
6	320(2)(a) – no longer capable of meaningful operation	Schedule C, clause 1	Removal of grandfathered entitlement to home loan benefits provided by the CBA for employees employed before 16 May 2001	Opposed

The power to vary a transferable instrument

[9] Section 320 applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a transfer of business under the Act. There is no dispute that section 320 applies in the present case. There have been a series of transfers of business for the purposes of the Act, in connection with which there are transferring employees. The employees are covered by the Agreement which is a transferable instrument. Because of the transfers of business, the Agreement now covers CMLA Services and the transferring employees in relation to the transferring work. 1

[10] Under section 320(2), the Commission may vary a transferable instrument in three circumstances:

1. to remove terms that the Commission is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business; or

2. to remove an ambiguity or uncertainty about how a term of the instrument operates, if it has arisen or will arise because of the transfer of business and the Commission is satisfied that the variation will remove the relevant ambiguity or uncertainty; or

3. to enable a transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

[11] A variation under section 320 can only be made on application by a person who is, or is likely to be, covered by the transferable instrument (except in the case of a named employer award, which is not the case here). 2

[12] In deciding whether to make the variation, the Commission must take into account seven matters. 3 These are (in short):

1. The views of the affected employer and employees,

2. Whether any employees would be disadvantaged by the variation in relation to their terms and conditions of employment,

3. The nominal expiry date of the enterprise agreement,

4. Whether if the variation is not made, the transferable instrument would have a negative impact on productivity in the new employer’s workplace,

5. Whether if the variation is not made, the transferable instrument would cause the new employer to incur significant economic disadvantage,

6. The degree of business synergy between the transferable instrument (without the variation) and any workplace instrument that already covers the new employer, and

7. The public interest.

[13] A variation cannot operate before the later of the time the transferable instrument starts to cover the new employer, or the day the variation is made. 4

Variations to remove ambiguity or uncertainty

[14] The first and second proposed variations of the Agreement would amend clauses 4(e) and 5(a) of Division A of the Agreement to provide for new transferring employees to be covered by Divisions A and B of the Agreement, and for old transferring employees to be covered by Division A and whichever of Divisions B-E is applicable to their work. The variation is not opposed by the Union. The variation is proposed on the basis that it will remove ambiguity or uncertainty that has arisen because of the transfers of business to CMLA Services.

[15] To understand the proposal, it is necessary to understand the structure of the Agreement. The Agreement covers “the Group” and employees of the Group employed in Australia as specified in the Divisions of the Agreement. The Group is defined as CBA, Commonwealth Insurance Limited, Commonwealth Securities Limited and Colonial Services Pty Ltd. There are five divisions in the Agreement. Division A applies to the “Group Division” – that is, employees in each of the entities that form part of the Group. Division B applies to employees of the CBA. Division C applies to employees of Commonwealth Securities Limited. Division D applies to employees of Colonial Services Pty Ltd and Division E applies to Commonwealth Insurance Limited. Terms and conditions of employment for employees who are covered by the Agreement are derived from Division A and whichever Division applies to the entity through which they are employed.

[16] As a result of the transfer of business, an ambiguity arises in relation to how the Agreement applies to employees of CMLA Services. This is because CMLA Services is not, at least on the face of the Agreement, an entity to which any of the Divisions of the Agreement applies.

[17] The change has been the subject of consultation with transferring employees over a number of years and there is no evidence of any objection to the Agreement being varied in this way. The Union does not oppose the variation.

[18] The change will not disadvantage any of the affected employees. What it will do is make clear which parts of the Agreement apply to them, in a way that ensures the continuing operation of existing terms to employees of CMLA Services. The Agreement nominally expired on 30 June 2017, long before completion of the purchase by AIA Group and before the transfers of business occurred.

[19] While there is unlikely to be much of a negative impact on productivity at CMLA Services’ workplace, in my view there will be some, arising from the need to continually explain how the Agreement applies to its employees. That aside, it cannot be said that CMLA Services will incur any significant economic disadvantage if the variation is not made.

[20] CMLA Services is not covered by another enterprise agreement. It is covered by the Banking, Finance and Insurance Award 2020. The Agreement, as it currently stands, is quite different to the modern award because it is tailored to the business in a way that the modern award is not.

[21] To the extent that there is any public interest in the proposed variation, it is that the resulting enterprise agreement and how it applies to employees after a transfer of business will be simpler and easier to understand.

[22] I am satisfied that the Agreement should be varied to remove ambiguity that has arisen following the transfers of business by inserting new terms that will explain how the Agreement applies to employees of CMLA in the manner proposed.

Variations to remove terms that are not capable of meaningful operation

Default superannuation fund – clause 20(b)

[23] The third proposed variation would amend clause 20(b) of Division A of the Agreement to permit superannuation contributions to be made into CMLA Services’ nominated default fund. CMLA Services submits that the current clause is not capable of meaningful operation, because CMLA Services is not a participating employer of the default fund nominated in clause 20(b) of the Agreement. While employees can elect to have their contributions made to this fund, CMLA Services cannot make a similar election other than at the request of the employee. It needs another fund nominated as the default fund for employees of CMLA Services in the Agreement. The variation is not opposed by the Union.

[24] I am satisfied that clause 20(b) of the Agreement, as it applies to CMLA Services, is not capable of meaningful operation in relation to the operation of the default superannuation fund, and that this is because of the transfers of business to CMLA Services.

[25] As noted above, there is no evidence of any objection to the Agreement being varied in this way. CMLA Services proposes the variation and the Union does not oppose it. Employees have been consulted about the change over a long period of time.

[26] The change will not disadvantage any of the affected employees. Employees can exercise their right to nominate the current default fund as their chosen superannuation fund if they were members of that fund at the time of their transfer to CMLA Services. The Agreement nominally expired on 30 June 2017, long before completion of the purchase by AIA Group and before the transfers of business occurred – a matter that has no bearing on the proposed change.

[27] There is no evidence of a negative impact on productivity at the workplace if the variation is not made. It is possible that CMLA Services will incur some economic disadvantage if the variation is not made because it does not have access to a default fund under the Agreement. However, there is no evidence of such disadvantage and certainly no evidence that it would be significant.

[28] The Banking, Finance and Insurance Award 2020 prescribes a list of default superannuation funds, none of which are reflected in the Agreement. In this respect, the business synergy between the modern award and the Agreement is limited.

[29] The public interest does not arise in relation to the third proposed variation except perhaps to the extent that it might promote compliance with federal superannuation legislation.

[30] I am satisfied that clause 20(b) of the Agreement should be varied to ensure that it remains capable of meaningful operation in relation to employees of CMLA Services. The variation will be made in the manner proposed.

Removal of the entitlement to fee-free banking with the CBA

[31] The fourth proposed variation would amend clause 5.1 of Division B of the Agreement to remove the entitlement to fee-free banking with the CBA for transferring employees.

[32] Clause 5.1 provides as follows:

“Employees’ salaries will be paid on a fortnightly basis by direct deposit into the employee’s CBA bank account or otherwise as agreed by CBA and an employee. CBA will provide employees with a CBA bank account, free of any maintenance fees, transaction fees and withdrawal fees (although other institutions’ ATM fees will apply). An employee must open and maintain this account as their nominated account for salary payment purposes throughout their employment.”

[33] The proposed variation would amend clause 5.1 so that it reads simply:

“Employees’ salaries will be paid on a fortnightly basis by direct deposit into a bank account nominated by the employee.”

The term is not capable of meaningful operation

[34] CMLA Services submits that clause 5.1, in its current form, is no longer capable of meaningful operation in relation to the transferring employees. This is because CMLA Services is not the CBA and it does not provide banking products or services. Providing employees with a CBA bank account – whether free of fees or otherwise – would require it to engage third parties to provide the banking benefits, an outcome that was not intended either by the parties to the Agreement or in connection with the purchase of the business. The CBA has advised that it is not operationally feasible for the bank to provide banking benefits to former employees.

[35] The Union submits that clause 5.1 remains capable of meaningful operation because it continues to confer tangible and substantial benefits on employees. It agrees that CMLA Services does not provide banking products or services but submits that CMLA Services can obtain these benefits for employees at a cost. As it is possible to provide the benefit, the term is capable of meaningful operation.

[36] It is not enough for a term to be capable of meaningful operation that it is beneficial in nature, or that provision of a benefit it confers is possible through some alternate mechanism to that contemplated by the term. It is the term itself that must be capable of operating in some meaningful way, consistent with what the parties intended at the time the Agreement was made. This is because terms of an enterprise agreement have the meaning ascribed to them by the makers of the agreement, construed objectively having regard to their context and evident purpose. 5 The Act contemplates the transfer of rights and obligations under an enterprise agreement if there is a transfer of business.6 Where this happens, and absent any order of the Commission under sections 318-320 of the Act, coverage of the enterprise agreement transfers to the new employer and relevant employees. Necessarily, this brings about a change in the content of the agreement – who it ‘covers’ and ‘applies to’.7 The content of the enterprise agreement, and its meaning, otherwise remains unchanged.

[37] I am satisfied that aspects of clause 5.1 are no longer capable of meaningful operation because of the transfers of business from “the Group” (as defined in the Agreement) to CMLA Services. The terms are no longer capable of meaningful operation to the extent that they require CMLA and its employees to do things they cannot do. Clause 5.1 commits CMLA Services to providing CBA accounts for its employees. The provision of CBA accounts for individuals is the exclusive domain of the CBA. It is not something that CMLA Services can do. Likewise, the requirement that employees must open and maintain “this account” as their nominated account for salary payment purposes relies on their being provided with an account by CMLA Services under clause 5.1 in the first place. Absent the account provided to them, employees cannot meet the obligation to maintain it for salary payment purposes.

[38] Even if the meaning of clause 5.1 could be strained to require CMLA Services to engage a third party to meet its obligations under the Agreement, it could not do so with any certainty. CMLA Services cannot control whether the CBA provides, and continues to provide, a bank account to a person. The inability of CMLA Services to ensure compliance with clause 5.1 in its current form reinforces my conclusion that the term is not capable of meaningful operation insofar as it applies to CMLA Services and its employees. That is so only because of the transfers of business from the Group to CMLA Services.

Should the variation be made?

[39] CMLA Services is the proponent of, and supports, the variation. As to the views of affected employees, some must be taken to accept the change in the absence of any objection to it since September 2020, and in light of their decision to accept the terms and conditions of their transferring employment, as well as compensation for the loss of fee-free banking. Other employees must be taken to oppose the variation because that is the position of the Union, taken on their behalf.

[40] Employees will be disadvantaged by the variation in the relevant sense because they will no longer have an entitlement to fee-free banking as a term or condition of their employment. This is so even though employees accepted compensation for their loss of the entitlement by the payment of a fixed amount equivalent to 10 years’ worth of current account fees. It is also possible that the disadvantage can be largely (if not entirely) avoided for employees who earn at least a net amount of $26,000 per year who choose to remain customers of the CBA. This is because fees may be waived on transaction accounts where a minimum of $2000.00 is deposited into their account each month. The disadvantage is ameliorated by some more beneficial entitlements provided by CMLA Services, including additional leave and a discount on life insurance products.

[41] The nominal expiry date of the Agreement does not have a bearing on whether the variation in relation to fee-free banking should be made.

[42] If the variation in relation to fee-free banking is not made, there is no evidence that the Agreement would have, or has had, a negative impact on productivity in CMLA Services’ workplace or that it would cause CMLA Services to incur significant economic disadvantage. A future decision by CMLA Services to enter into an arrangement with a third party to provide bank accounts for its employees at its cost, or to reimburse them for banking fees incurred, or even a decision to treat clause 5.1 as inoperative and do nothing at the risk of later prosecution for alleged contraventions of the Agreement, are hypothetical scenarios of limited assistance in relation to whether the variations should be made.

[43] There is no relevant business synergy between the Agreement and the modern award in relation to fee-free banking or similar entitlements. The Agreement provides for this entitlement while the modern award does not.

[44] There is a public interest in ensuring that parties have certainty about the terms of an enterprise agreement to which they are bound and that those terms have relevant operative effect. In the context of a transfer of business, the public interest lies in striking a balance between the protection of employee entitlements and the interests of employers in running their enterprises efficiently. 8 In my view, variation to clause 5.1 of the Agreement in the manner proposed will be consistent with this objective.

[45] On balance, I am satisfied that it is appropriate to vary clause 5.1 of the Agreement as proposed to ensure that it is capable of meaningful operation in relation to CMLA Services and its employees.

Removal of entitlement to retain certain banking benefits upon retrenchment

[46] The fifth proposed variation would amend clause 13.8 of Division B of the Agreement to remove certain entitlements to banking benefits upon retrenchment.

[47] In summary, the entitlements conferred by clause 13.8 of Division B:

1. Extend the continuing benefits of retired CBA employees to ongoing employees who are at least 55 years of age when they are retrenched.

2. For 9 months after the date of retrenchment, allow ongoing employees under 55 years of age to:

a. retain their existing concessional home loan terms, followed by fee-free refinancing at the end of the 9-month period to a CBA new customer rate,

b. retain any other CBA loans or credit cards on concessional rates, and

c. be exempt from all CBA fees and charges.

3. Make counselling and information processes available to ongoing employees who are retrenched without charge, so that they can be advised of:

a. the amount they will receive on retrenchment,

b. entitlements and options under the relevant superannuation fund, and

c. alternative investment strategies (eg. through access to CBA pre-retirement seminars).

[48] The proposed variation would replace clause 13.8 and replace it with a term that provides:

“CMLA Services Pty Ltd will establish appropriate counselling and information procedures and make these available to retrenched employees without charge. Such procedures will provide for employees to be advised of the sums of money the employee will receive by way of severance payments, pay in lieu of notice and leave credits and for employees to have access to financial advice.”

[49] The effect of the proposal is to remove the obligation to provide continuing concessional CBA loan, credit and account arrangements for employees of CMLA Services who are retrenched. The obligation to provide financial counselling and information to employees upon retrenchment will remain.

The term is not capable of meaningful operation

[50] On this issue, CMLA Services reiterates that it is not a business that provides banking products or services and it is unable to provide these benefits directly to employees. The CBA has not agreed to provide banking benefits to its former employees on the basis that it is not operationally feasible. To the extent that CMLA Services could provide these benefits through a third party, this is not what the Agreement provides. CMLA submits that this would result in it incurring additional costs unreasonably.

[51] The Union submits that because the banking benefits conferred by clause 13.8 are tangible and substantial, the term is capable of meaningful operation and it does not matter if this would cause inconvenience or expense to CMLA Services. I have rejected this argument above so far as the possibility of providing equivalent benefits equates to the meaningful operation of a term. The Union also submits the terms are not ambiguous or uncertain and nor would their removal have the purpose of allowing the Agreements to operate in a way that is better aligned to its own working arrangements (that is, plans, preparations, methods or systems for the performance of work, tasks, duties and responsibilities undertaken by employees 9). Neither of these arguments are put by CMLA Services. It also submits that the variation should not be made because the mandatory considerations weigh against it.

Should the variation be made?

[52] For the same reasons as above, the variation should be made. CMLA Services is not the CBA, and it is not provider of banking products or services. Ensuring that employees receive concessional credit, loan and other arrangements from the CBA is not a matter within the control of CMLA Services. It cannot refinance their home loans to other loans on its books because it is not a home loan provider. It might agree to reimburse costs of this kind for employees – either in addition to compensation already paid for the loss of this benefit or instead of it – but this is not what clause 13.8 of Division B requires and nor would it be sufficient for the purposes of compliance with the clause.

[53] CMLA Services is the employer and urges for the variation to be made. Some of the affected employees are taken to have accepted the change, while others oppose it. It is possible that employees will be disadvantaged by the variation insofar as the benefits will no longer form part of their terms and conditions of employment, but this is only the case if the employees are retrenched by CMLA Services. In other words, it is a contingent entitlement, rather than one that is guaranteed.

[54] Employees accepted compensation for the loss of these benefits in connection with their acceptance of ongoing employment with CMLA Services. Compensation factored for the possibility of loss through maintenance of fee waiver arrangements under the CBA Wealth Package, payment of an amount equivalent to two years’ monthly loan fees and interest payments as well as credit card annual fees and average monthly interest. Arrangements were also made for employees to remain exempt from all CBA fees and charges for a 9-month period.

[55] The nominal expiry date of the Agreement has long since passed. If the Agreement remains unchanged, I am not satisfied that it would have a negative impact on productivity in the new employer’s workplace because there is no evidence to that effect. What is likely is continuing legal uncertainty about whether CMLA Services must comply with clause 13.8 of Division B, and if so, how. This may cause CMLA Services to future incur economic disadvantage although the degree of disadvantage cannot be quantified with any precision. There is no business synergy between the Agreement and the modern award in relation to the banking benefits upon retrenchment. The public interest favours a variation in the interests of certainty about the terms of enterprise agreements and their operative effect.

Removal of grandfathered home loan benefits for employees employed before 16 May 2001

The term is not capable of meaningful operation

[56] The final proposed variation would delete clause 1 of Schedule C to the Agreement to remove grandfathered entitlements in relation to a closed staff housing loan scheme provided by CBA for employees employed before 16 May 2001. For the same reasons as above, CMLA Services submits that the term is not capable of meaningful operation because of the transfer of business. The Union says that it is, in effect because it is possible to make arrangements that provide equivalent benefits for employees. It also points to more generous transitional arrangements for CBA employees who previously had staff housing loans negotiated with the CBA under its new enterprise agreement. These arrangements are not relevant because they apply to the CBA and its employees. They do not apply to CMLA Services or its employees, and nor could they, because CMLA Services is not a party to the contracts and is not a home loan provider. The change affects approximately 11 employees.

[57] I am satisfied that the term is no longer capable of meaningful operation in relation to the terms and conditions of employees of CMLA Services. This is for the reasons I have already set out. CMLA Services is not a loan provider, does not operate the staff housing loan scheme and cannot meet commitments previously, or even more recently, made by the CBA in this regard. That CMLA Services may have the capacity to provide alternative benefits of equivalent value does not mean that clause 1 of Schedule C itself is capable of meaningful operation in relation to CMLA Services and its employees.

Should the variation be made?

[58] CMLA Services supports the variation and affected employees have accepted its removal as a condition of the transfer of their employment to CMLA Services. Even so, some of the employees represented by the Union oppose the change because of the loss of value it represents for the small group of affected employees.

[59] I accept that 11 of the 729 transferring employees will be disadvantaged by the variation in relation to their terms and conditions of employment, because they will no longer have the benefit of the closed staff housing loan scheme. This is one consequence of their decision to accept a transfer of employment to CMLA Services. Employees have been compensated for the reduction, including by waiver of annual wealth package fees and payment of five years’ worth of Death Cover Premium. The compensation ameliorates, but does not offset entirely, the value of what is lost.

[60] The nominal expiry date of the Agreement has passed and has no material bearing on the application. Without the variation, there is no evidence that the Agreement will have a negative impact on productivity in the new employer’s workplace, and I am satisfied that it would not. Nor would the Agreement, without change, cause CMLA Services to incur significant economic disadvantage by the continuing existence of clause 1 of Schedule C to the Agreement. As with the other, effectively inoperative, variations, there is the potential for future economic disadvantage in connection with litigation over allegations of non-compliance with the Agreement but it is difficult to quantify the degree of any disadvantage of this kind in any meaningful way.

[61] There is no business synergy between the Agreement (without the variation) and the modern award.

[62] There are competing public interest considerations on this issue. On the one hand, there is a public interest in protecting employee’s terms and conditions of employment under enterprise agreements. On the other, there is a public interest in promoting certainty about the terms of enterprise agreements and their operative effect. On balance, the public interest weighs in favour of the variation because what employees have lost is a benefit no longer derived from an operative term or condition of their employment under the Agreement. Clause 1 of Schedule C to the Agreement regulates and supplements contractual home loan arrangements between CBA and its former employees. The clause does not and cannot impose any meaningful obligation on CMLA Services in relation to those employees, including because it is not a party to those contractual arrangements.

[63] I am satisfied that it is appropriate to vary the Agreement to remove clause 1 of Schedule C to the Agreement.

Form of the proposed variation

[64] There is a tension in the form of orders sought in this matter, arising from a difference of view about how the Act operates in relation to the creation of ‘transferable instruments’ under section 312 of the Act.

[65] CMLA Services submits that on a transfer of business, the Act creates a new instrument – effectively a ‘carbon copy’ of the existing instrument – which is the “transferable instrument” that covers and applies to the new employer and employees who perform the transferring work. The Union submits that any variation to the Agreement will affect all employers and employees that it covers, including the broader CBA “Group” and its employees. It submits that this is a reason why the variation should not be made.

[66] Section 312 provides that “each of the following is a transferable instrument”:

1. An enterprise agreement that has been approved by the FWC;

2. A workplace determination;

3. A named employer award.

[67] I do not accept CMLA Services’ characterisation of section 312 and its related provisions as creating a new ‘transferable instrument’ that is separate to, or a ‘carbon copy’ of, the industrial instrument from which it came. A transferable instrument begins to cover the new employer and transferring employees after a transfer of business from the old employer, as well as non-transferring employees who perform the transferring work. But that does not mean it had no coverage or application (and so no operation) before that time.

[68] A transferable instrument is simply a type of industrial instrument that is capable of transferring from one business to another when there is a transfer of business under the Act. In the case of an enterprise agreement, it is the enterprise agreement that has been approved by the Commission. The enterprise agreement is one that commenced operating 7 days after its approval and that continues to operate until terminated or replaced. This is the case despite any change in its scope brought about by a transfer of business.

[69] For this reason, variations under section 320 of the Act need to be carefully drafted to ensure that changes made in relation to the new employer(s) and their employees performing transferring work are confined in their operation to those employers and employees. I will proceed on that basis.

[70] Finally, and after the hearing of this matter, the Union made an alternative submission that any variation should include an enforceable entitlement to compensation on fair terms for the loss of banking benefits. Aside from the difficulty in ascertaining how such an order might be crafted, it would not be appropriate for me to vary the Agreement in this way. This is because what is put amounts to a separate application to vary the Agreement. It should be dealt with in the proper way, by an application to the Commission, and then if necessary, a hearing with evidence to support the respective positions of the parties. The matter should not be dealt with in circumstances where it is raised after the close of hearing, in submissions that were to be limited to the question of how employees would be disadvantaged by the variations proposed by CMLA Services, and without having given CMLA Services an opportunity to respond.

Conclusion

[71] The Agreement will be varied to give effect to this decision. An order coming into effect at the same time as this decision will issue separately.

COMMISSIONER

Appearances:

F Leoncio of Counsel instructed by Ashurst for the Applicant.
S Howe of Turner Freeman Lawyers for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
June 7.

Final written submissions:

Applicant, 22 June 2021.
Respondent, 24 June 2021.

Printed by authority of the Commonwealth Government Printer

<AE422385  PR732870>

 1   Fair Work Act 2009 (Cth), s.311-314.

 2   Fair Work Act 2009 (Cth), s.320(3).

 3   Fair Work Act 2009 (Cth), s.320(4(a)-(g).

 4   Fair Work Act 2009 (Cth), s.320(5).

 5   Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197]; see also Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.

 6   Fair Work Act 2009 (Cth), s.310.

 7   Fair Work Act 2009 (Cth), ss.52-3, ss.313-4.

 8   Fair Work Act 2009 (Cth), s.309.

 9   Transport Worker’s Union of Australia v Viva Energy Australia Ltd [2019] FWCFB 6212 at [40].