Commonwealth Bank of Australia T/A Commonwealth Bank

[2025] FWC 452

[2025] FWC 452

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 T/A Commonwealth Bank

(AG2024/5246)

Banking finance and insurance industry
COMMISSIONER WILSON	MELBOURNE, 21 FEBRUARY 2025

Application for an order relating to instruments covering new employer and transferring employees.

1. The Commission has received an application made by Commonwealth Bank of Australia (the Applicant) in which it seeks an order pursuant to s.318(1)(a) of the Fair Work Act 2009 (the Act).

1. The order sought by the Applicant has the following effect:

1. Pursuant to s.318(1)(a), the Bankwest Enterprise Agreement 2024 does not, and will not, cover the Commonwealth Bank of Australia or the employees listed in a Confidential Schedule held on the file of this matter (together the Transferring Employees) in respect of their employment with the Applicant, in the positions stated in the schedule.

2. Pursuant to s.318(b) of the FW Act, the Commonwealth Bank of Australia Enterprise Agreement 2023 (CBA Agreement) covers the Transferring Employees in respect of their employment with the Applicant in the roles of Customer Banking Specialist, Customer Service Representative or Contact Centre Banking Consultant.

3. That in accordance with s.318(4) of the FW Act, the orders take effect from the later of:

a.   the commencement of the Transferring Employees’ employment with the Applicant; or

b.   the day on which the order is made.

1. For the reasons that follow, I am satisfied that the order should be made.

Background

1. Presently, the employees the subject of the application by the Applicant (Transferring Employees) are employed by BWA Group Services Pty Ltd (BWAGS). BWAGS is an associated entity of the Applicant. Bankwest is a business unit within the Applicant’s operations.

1. On 7 March 2024, the Applicant announced that 57 Bankwest branches across Western Australia were to be closed, and 15 of those branches would be converted into Commonwealth Bank branches.

1. This application relates to 27 Transferring Employees of BWAGS who have since been offered permanent employment with the Applicant. Bankwest has undertaken efforts to redeploy its impacted employees including, where reasonable, identifying alternate roles with the Applicant’s Customer Service Network. The alternate roles are either substantially the same, or very similar to, the roles the employees were performing for Bankwest prior to the branch conversion.

1. Each of the Transferring Employees have been offered employment with the Applicant and will shortly cease their employment with BWAGS and commence employment with the Applicant, performing work for the Applicant that is substantially the same as the work that they currently perform for BWAGS. The Transferring Employees are currently performing roles for the Applicant, by way of secondment from BWAGS to the Applicant.

1. BWAGS has informed the Applicant that each of the Transferring Employees’ employment with BWAGS is covered by the Bankwest Agreement.

Legislative provisions

1. Section 318 provides:

“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.”

Consideration

1. I am satisfied that the Applicant has standing to make the application as the new employer in accordance with s.318(2)(a). I am also satisfied the Commission has the power to make an order pursuant to s.318(1)(b) of the Act.

1. On 28 January 2025, my Chambers Directed the Applicant to serve the following on each employee identified in item 2.2(1) of the Form F40:

1. The Applicant is directed to serve the following on each Transferring Employee identified in item 2.2(1) of the Form F40 – Application for orders in relation to a transfer of business;

1. The Application and the witness statement of Kim Fisher and attachment thereto; and

2. This notice:

The Commonwealth Bank of Australia (CBA) has been directed to send you this notification by Commissioner Wilson, a member of the Fair Work Commission.

The CBA has made an application to the Fair Work Commission for an order that the Bankwest Enterprise Agreement 2024 does not and will not cover your employment from a particular date.  The reasons for the application and its date of effect are set out in the attached documents (the CBA application and a witness statement and documents from Kim Fisher, CBA’s Executive Manager Industrial Relations.

Commissioner Wilson is required to consider the application in accordance with the Fair Work Act, part of which requires him to take account of the views of the employees who would be affected by the order, if made. He now invites your views.

If you or anyone acting on your behalf wishes to provide views about the application they must be provided in writing to [email protected] by no later than 4 PM AEDT Friday 7 February 2025.  Any views that are provided may be provided by the Commission to the CBA.  If you put forward your views anonymously it will only be possible for the Commission to provide to the CBA the theme of what is communicated.

Commissioner Wilson has also directed the CBA to provide the application and supporting documents and this notification to the Finance Sector Union of Australia.

2. The Applicant is also directed to serve the above material and the whole of these directions on the Finance Sector Union of Australia, being covered by each of the Bankwest Enterprise Agreement 2024 and the Commonwealth Bank Enterprise Agreement 2023.

3. The Applicant is directed to file a statutory declaration by no later than 4:00PM AEDT Friday, 7 February 2024 detailing its compliance with these directions.

1. No responses were provided to Chambers from the Finance Sector Union of Australia or any of the Transferring Employees. On 3 February 2025, the Applicant provided a statutory declaration to Chambers, detailing its compliance with the above directions.

1. I note the nominal expiry dates of both the Bankwest Enterprise Agreement 2024 and the CBA Agreement are the same, 30 June 2026.

1. The Applicant submits that there will be no overall disadvantage to the Transferring Employee’s terms and conditions of employment, should the order requested be made by the Commission. The Applicant has largely standardised and aligned the agreements, and the Applicant submits that the Transferring Employees will receive similar, if not slightly more beneficial terms and conditions.

1. The Applicant held a multistage consultation process with each of the Transferring Employees, commencing on 19 March 2024. The Applicant has also made an offer of employment to each of the Transferring Employees and each Transferring Employee has accepted this offer. Each contract of employment provided by the Applicant to the Transferring Employees contains a clause noting that the Applicant intended to make an application to the Commission under section 318 of the Act to the effect that, from the commencement of the employment beginning with the Applicant, the Commonwealth Bank Enterprise Agreement 2023 is to cover the employee. I am satisfied that the views of the Transferring Employees have been sought, and they have been well appraised of the effect of the order sought by the Applicant.

1. The productivity of the Applicant’s workplace would be negatively impacted by the application of the Bankwest Agreement, as the administration of two separate enterprise agreements would lead to operational inefficiencies.

1. I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.318(3) of the Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.318(3) of the Act, support the making of the order.

1. An order to this effect will be issued with this decision, which will come into operation on 21 February 2025.[1]

COMMISSIONER

[1] PR723021.

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