Commonwealth Bank of Australia

[2018] FWC 7748

[2018] FWC 7748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees

Commonwealth Bank of Australia
(AG2018/6967)

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 DECEMBER 2018

Application for an order relating to instruments covering new employer and transferring employees – closure of Bankwest branches – views of the parties – orders made.

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by the Commonwealth Bank of Australia (‘CBA’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the BWA Group Services Pty Ltd Bankwest Enterprise Agreement 2016 (the ‘Agreement’) not apply to them if Alina Khan, Katherine Serbin, Keith Snell, Lucas Toscano, Lu Chen, Natalie Bailey, Maddie de Mestre-Thrift and Mark Rodgers (the ‘transferring employees’) transfers from BWA Group Services Pty Ltd (‘BWAGS’ or the ‘old employer’) to the new employer, the Commonwealth Bank Group (s 311). It is assumed both companies are associated entities for the purpose of s 311(6) of the Act, within the meaning of s 50AAA of the Corporations Act 2001.

[2] Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

‘318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.’

[3] In the applicants’ Form F40 - Application for Orders in Relation to Transfer of Business, Mr Ogilvie (Solicitor, Herbert Smith Freehills) explained the background to the application. In brief, the Commonwealth Bank Group announced the closure of 29 Bankwest branches across New South Wales, Queensland and Victoria. As a result, the roles of 200 BWAGS employees were no longer required. Since the branch closures, BWAGS has been in the process of undertaking redeployment opportunities for its affected employees, based on suitability in alternative roles within the broader Commonwealth Bank Group. From 9 October 2018 through to 27 November 2018, the transferring employees accepted employment within the Retail Banking Services Business Unit in the roles of Customer Service Representative, Customer Service Agent and Customer Service Specialist. The Commonwealth Bank Group has made these conditional offers on the basis that the Commission orders that the Agreement will not cover either the transferring employees, or BWAGS, and that the transferring employees be covered by the Commonwealth Bank Group Enterprise Agreement 2016. Should the order be granted, the terms and conditions will remain largely similar, with no overall disadvantage to the transferring employees’ terms and conditions employment.

[4] Having reviewed the filed documentation and considered the submissions of the applicants, I am satisfied that all the requirements of s 318 of the Act have been met. Specifically, I have taken into account all of the matters in s 318(3) in arriving at my decision and note, in particular, that the preference of the transferring employees is to retain employment with the roles offered by Commonwealth Bank Group. Accordingly, I propose to issue orders sought by the applicants, which accompany the publication of this decision. Pursuant to s 318(4), and at the request of the applicants, the orders shall take effect from today.

DEPUTY PRESIDENT

Appearances:

Hearing details:

Final written submissions:

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