Credit Union Australia Ltd T/A Great Southern Bank

[2022] FWCA 370

[2022] FWCA 370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Credit Union Australia Ltd T/A Great Southern Bank
(AG2021/8546)

GREAT SOUTHERN BANK ENTERPRISE AGREEMENT 2021

Banking finance and insurance industry
DEPUTY PRESIDENT EASTON	SYDNEY, 7 FEBRUARY 2022

Application for approval of the Great Southern Bank Enterprise Agreement 2021.

[1] Credit Union Australia Ltd T/A Great Southern Bank (the Employer) has made an application for the approval of the Great Southern Bank Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

NES Provisions

[2] In the course of the approval process I queried whether several clauses of the Agreement were consistent with the NES:

● Personal leave: Clause 48.6 requires employees to provide either a medical certificate or statutory declaration as evidence of personal leave where the leave exceeds one day, is adjacent to a holiday or rostered day off, or after four single days of absence in a year. This may be narrower than s.107 of the Act, which requires evidence that would satisfy a reasonable person.

● Compassionate leave: Clause 50 does not provide compassionate leave for stillbirth/miscarriage consistent with s.104 of the Act.

● Public holidays: Clause 62 provides that employees are entitled to absence on a public holiday unless requested to work. This may place a greater restriction on entitlement to absence on a public holiday than s.114 of the Act.

● Notice of termination: Clause 63.4 provides that packaged employees will be provided with a minimum of four weeks’ notice of termination. This may be less than provided by s.117(3)(b) of the Act, which provides an extra week of notice for employees over 45 years of age with two continuous years of service.

● Deduction: Clause 63.5 provides that if the employee does not give the required notice, the employer may withhold an amount from monies due to the employee. Clause 64.3 provides that the employer may deduct the amount of any money owed by the employee from any amount payable to the employee on termination. These clauses appear to allow for deductions from accrued NES entitlements.

[3] I invited the Employer to make submissions or provide undertakings in relation to these possible inconsistencies. In short the Employer has declined to provide any undertakings about these matters, instead relying on clause 7.2 of the Agreement, which is in the following terms:

“7.2 If part of this Agreement would reduce any entitlement provided by the NES, that part of the Agreement will not apply.”

[4] The Employer also provided submissions that the operation of each identified clause was not inconsistent with the corresponding NES provision. The Finance Sector Union of Australia (FSU) took issue with the Employer’s submissions and argued in response that there are in fact inconsistencies. The FSU also submitted that “at a minimum, undertakings should be given to ensure those matters are specifically identified and appended to the Agreement.”

[5] I do not need to determine whether any of the clauses are inconsistent because I am satisfied that clause 7.2 is effective to displace the operation of any provision that might otherwise reduce an entitlement provided by the NES.

[6] It is not mandatory for an employer to provide undertakings. Nonetheless it would have been helpful for the Employer to have done so to allow the relevant matters to be specifically noted.

[7] Recognising the potential inconsistencies referred to above, the Employer’s decision not to provide an undertaking about these matters, the legal effect of clause 7.2, and the practical benefit in flagging somewhere in the documentation accompanying the Agreement that clause 7.2 might operate directly upon the identified provisions, I have separately noted my concerns in this decision.

Undertakings - Other matters

[8] The Employer has provided written undertakings to clarify the definitions of “Scorecard Incentive Program” and “SIP Rules” in clauses 14.12, 24 and 54.5. A copy of these undertakings are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[9] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Application to vary the Agreement

[10] The application for approval of the Agreement was accompanied by an application to vary the agreement. The Employer says the proposed variations were to remove ambiguity.

[11] I doubt that the Employer has standing under s.217 of the Act to make the application to vary the Agreement prior to its approval. My preliminary view is that the Employer could not be covered by the Agreement (per s.217(1)(a)) until the Agreement is approved and is in operation. 1

[12] The application to vary the agreement was not pressed and instead the Employer has provided undertakings in order to bring clarity to matters that it says are ambiguous.

[13] The FSU was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the FSU.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2022. The nominal expiry date of the Agreement is 7 February 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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1   See Fair Work Act 2009 (Cth), s53-54.

Annexure A