Finance Sector Union of Australia
[2023] FWCFB 237
•5 DECEMBER 2023
[2023] FWCFB 237 FAIR WORK COMMISSION
DECISION Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments
Finance Sector Union of Australia
(AG2023/3963)
Banking finance and insurance industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT ROBERTS
SYDNEY, 5 DECEMBER 2023
Application to extend the default period for various agreements with franchises of the Bendigo and Adelaide Bank
[1] The Finance Sector Union (FSU) has applied, pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (TransitionalAct), to extend the default period for 101 agreements listed in Schedule 1 of this decision (Agreements). The Agreements were made under the Workplace Relations Act1996 (Cth) and are agreement-based transitional instruments to which item 20A applies.
[2] The application seeks to extend the Agreements for a period of 12 months, until 6 December 2024.
[3] The employers covered by the Agreements are, for the most part, small community banks which are run by a volunteer board of directors. The banks operate on a profit-with- purpose, social enterprise model in which all profits are returned to the community in which they operate. Many of them are in remote and regional communities around the country. Each of the employers is a franchise of the Bendigo and Adelaide Bank Ltd (BABL).
[4] BABL has been appointed as a bargaining representative for each of the 101 employers to whom the Agreements that are the subject of the present application apply. They are also a bargaining representative for a further 51 employers who are also covered by agreements which are not the subject of this application. BABL has been appointed as a bargaining representative for these employers for the purpose of negotiating a Cooperative Workplace Agreement to replace all 162 of these agreements.
[5] Item 20A of Sch 3 to the Transitional Act provides for the automatic sunsetting of agreement-based transitional instruments by the end of the default period on 6 December 2023, subject to the capacity to apply to the Commission for an extension of that period for up to four years in prescribed circumstances. The agreements to which these provisions apply are commonly known as zombie agreements. The main features of item 20A of Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[1].
[6] Relevantly, when an application is made under subitem (4) of item 20A of Sch 3 to the Transitional Act, the Commission is required under subitem (6) to extend the default period if the Commission is satisfied that subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so.
[7] The application is advanced on the basis that subitems (7) applies and it is otherwise appropriate in the circumstances to extend the default period.
[8] The Full Bench in ISS Health Services Pty Ltd[2] described the three requirements for subitem (7) to apply. The first is the requirement that the application is made at or after the ‘notification time’ for a proposed agreement as defined in s.173(2) of the Fair Work Act 2009 (FW Act). The second is that the proposed agreement must cover the same or substantially the same group of employees as the zombie agreement. The Full Bench stated that this could be established by comparing the Notice of Employee Representational Rights (NERR) for the proposed agreement to the coverage clause of the zombie agreement. The third is that bargaining for the proposed agreement must be occurring.
[9] The parties advised the Commission that between 18 and 27 September 2023, BABL issued NERRs on behalf of the 162 companies to employees of those companies notifying of the intention of the employers to negotiate a new cooperative workplace agreement. A copy of each of the NERRs sent to the employees of the 101 companies affected by this application was provided to the Commission.
[10] After the NERRs were issued, bargaining commenced with the FSU and the Australian Municipal, Administrative, Clerical and Services Union (ASU).
[11] The NERRs are in identical terms. They each refer to an enterprise agreement covering employees employed in lending, customer service, marketing, community engagement, administrative and cleaning roles that fall within the classifications in the proposed agreement.
[12] The parties advised that the Agreements were based on two versions of a template document and that a small number of employers may have used the earlier version with only some slight variations but with ‘no material difference to the substantive terms of the agreement.’ The BABL submitted that the scope of the Agreements was broadly similar, with some differences in the indicative roles specified. The Agreements include a definition of ‘employees’ at clause 2.1 that refers to ‘all clerical employees who perform work that falls within the grades specified in the agreement.’ The employee grades are set out at clause 8. The following is a typical description of the employee grades. It is taken from the Merbein Community Bank Collective Agreement:
(a) Grade 1
When performing routine clerical work including the work of Office Services Clerk, Imaging Officer, Basic Data Entry and other work of similar work nature.
(b) Grade 2
When performing any of the work in Grade 1 and the work of Cheque Clearing Officer, Customer Account Services Officer and other work of a similar nature.
(c) Grade 3
When performing any of the work in Grades 1 and 2 and the work of card Disputes Officer, Banking Consultant, Card Operations Officer, Customer Service Officer, Loan Services Officer, Treasury Operations Officer and other work of a similar nature.
(d) Grade 4
When performing any of the work in Grades 1, 2 and 3 and the work of Customer & Community Officer, Customer Service Supervisor, Customer Relationship Officer, Lending Officer, Team Leader, Payroll Officer, and other work of a similar nature.
[13] The Commission was advised that the parties have engaged in bargaining meetings on 4, 18 October and 1 November 2023. Further bargaining meetings were scheduled to take place on 16 and 29 November and 13 December 2023. BABL advised that it anticipated that a new agreement would be put to a vote of the employees in January 2024.
[14] The uncontested material provided by the parties is sufficient to allow us to form a view as to the requirements of subitem (7). First, the NERR shows that the companies agreed to bargain or initiated bargaining in September 2023 and that there was a notification time for a proposed agreement. The application for extension of the Agreements was filed on 30 October 2023 after the notification time for a proposed agreement. Second, the group of employees covered by the proposed agreement, as described in the NERRs, is substantially the same as the coverage of the Agreements. Finally, the parties agree that bargaining has commenced and is currently occurring. On this basis, we are satisfied that subitem (7) applies.
[15] As subitem (7) is met, subitem 6(a) requires a consideration of whether it is otherwise appropriate in the circumstances to extend the default period. In ISS Health Services, the Full Bench considered it appropriate to do so where the parties sought time to negotiate a replacement agreement and are not simply seeking to extend an agreement for the maximum period for the sake of convenience. The Full Bench also took into account that while the zombie agreement remained in place, the employees would be better off overall than if the modern award applied.
[16] The FSU submitted that it is appropriate to extend the default period in all of the circumstances. It contended that the Agreements contain some provisions which are beneficial to the employees to whom they apply and superior to the provisions of the Banking, Finance and Insurance Industry Award 2020 (Award) which would apply to employees if the default period is not extended. These include clauses relating to redundancy pay and laundry allowance. The FSU said it was appropriate to extend the default period for the Agreements because it was highly unlikely that bargaining would be concluded before 6 December 2023. The FSU said in circumstances where parties are negotiating a new multi-enterprise agreement in good faith it is appropriate to extend the default period to allow negotiations to run their course. The ASU supported the FSU’s application to extend the default periods for the Agreements.
[17] BABL submitted that in the time available it was not possible to obtain instructions from each of the 101 employer respondents to the application. However, BABL said that given the time that the zombie agreements had been in operation it was likely that employees would be better off if the Award applied rather than the Agreements. They referred to various clauses in the Award that were said to be superior to those in the Agreements. These included minimum engagement periods for casuals, higher penalty rates and more favourable overtime provisions (depending on when overtime is worked). BABL said that each company covered by a zombie agreement had given them an assurance (that would also shortly be given to employees), that the redundancy and uniform and laundry allowance provisions of the Agreements would continue to be paid in the period between the termination of the Agreements and the commencement of a new cooperative agreement. BABL submitted that if the Commission were minded to grant an extension, it should be for a shorter period of 3 months rather than the 12-month period sought by the Applicant.
[18] We are satisfied that it is appropriate in all of the circumstances to extend the default period for the Agreements. This is not a case where the parties were seeking the maximum extension as a matter of convenience. Rather, both sides are actively bargaining for a replacement instrument. We accept that, particularly given the number of agreements involved here, and the objective of consolidating them into a single multi-enterprise agreement, bargaining will not be concluded, and a new agreement approved, for some time. The parties are committed to negotiating a replacement agreement and need time beyond 6 December 2023 to do so.
[19] As we are satisfied that subitem 6(a) applies we are required to extend the default period. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[3] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be for more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[4] The extension sought by the FSU in the application was 12 months.
[20] In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in circumstances where subitem (7) applied. The Full Bench considered this sufficient time for a replacement agreement to be finalised in circumstances where there was some complexity in the bargaining, including issues of contested scope. The Full Bench noted that should the parties require assistance to finalise an agreement then s.240 of the FW Act provides access to the Commission to resolve any disputes that arise. The Full Bench noted that the additional 12 months amounted to an 18-month period in which to conclude an agreement, as the NERR in that matter had been issued in June 2023.
[21] We have had regard to the current status of the bargaining process. We note also that the proposed agreement will cover a group of some 592 employees, the 101 mostly small employer respondents to this application and a further 51 employers and their employees all currently covered by separate agreements. We take into account the fact that the employees and employers who will be covered by the proposed agreement are spread across a wide range of areas including many remote and regional areas. These are factors which can make the logistics of bargaining more challenging. We note the submission of BABL that the employers involved are not large and sophisticated employers and, in most instances, lack the size, skill and resources to bargain for a single enterprise agreement. The employers will no doubt be assisted by the resources and expertise of BABL as a nominated bargaining representative, just as the employees will draw on the expertise of experienced union bargaining representatives. However, the task of consolidating the existing arrangements applying to multiple employers in multiple workplaces into a single multi-enterprise agreement will take some time. The parties accepted that the task would not be completed before December 2023.
[22] We consider that the inferior conditions of employment in the Agreements identified by BABL weigh against extending the default period by the full 12-month period sought by the Applicant.
[23] In all the circumstances we propose to extend the default period for this agreement by a period of 6 months which should, in our view, allow sufficient time for the parties to finalise a replacement enterprise agreement.
An order extending the default period for the Agreement by 6 months to 6 June 2024 will be published separately. The Agreements are published, in accordance with subitem (10A)(c), on the Fair Work Commission’s website and can be accessed through the hyperlinks in Schedule 1 to this decision.
DEPUTY PRESIDENT
Schedule 1
| Enterprise Agreement Name | Approval date |
| Adelaide Plains Financial Services Ltd Community Bank Collective Agreement | 22/04/2009 |
| AGNES WATER / 1770 COMMUNITY ENTERPRISES LIMITED Employee Collective Agreement | 15/05/2008 |
| Adelong And District Financial Services Ltd Community Bank Collective Agreement | 3/06/2009 |
| Apollo Bay & District Community Enterprises Limited Employee Collective Agreement | 31/03/2008 |
| Augusta And Districts Community Financial Services Ltd Community Bank Collective Agreement | 2/06/2009 |
| Avoca District Co-Operative Ltd Community Bank Collective Agreement | 22/04/2009 |
| Babinda Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Balnarring & District Community Services Limited Employee Collective Agreement | 31/03/2008 |
| Beaufort Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Berowra And District Financial Services Limited Employee Collective Agreement | 7/05/2009 |
| Bexley Financial Services Limited Community Bank Collective Agreement | 7/05/2009 |
| Boorowa Community Financial Services Limited Community Bank Collective Agreement | 19/05/2009 |
| Byford And Districts Community Development Services Employee Collective Agreement | 22/04/2009 |
| Carrum Downs Financial Services Limted Community Bank Collective Agreement | 1/05/2009 |
| Caulfield Park Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| Clarence Valley Community Financial Services Limited Community Bank Collective Agreement | Approx 2009 |
| Cobden And Districts Community Finance Limited Community Bank Collective Agreement | 6/05/2009 |
| Coleraine And District Financial Services Limited Community Bank Collective Agreement | 23/04/2009 |
| Creswick And District Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Cummins District Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Dancoor Community Finances Limited Community Bank Collective Agreement | 12/05/2009 |
| Dimboola And District Financial Services Limited Community Bank Collective Agreement | 23/04/2009 |
| Dingley Village Financial Services Limited Community Bank Collective Agreement | 27/04/2009 |
| Donnybrook Capel Districts Community Financial Services Limited Community Bank Collective Agreement | 2/06/2009 |
| Drouin And District Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| East Gosford And Districts Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| East Keilor Community Financial Services Limited Community Bank Collective Agreement | 6/05/2009 |
| Edenhope And District Financial Services Limited Community Bank Collective Agreement | 23/04/2009 |
| Elwood Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| North Epping Financial Services Limited Community Bank Collective Agreement | 7/05/2009 |
| Ettalong Beach Financial Services Community Bank Collective Agreement | 22/04/2009 |
| Fairy Meadow Community Financial Services Limited Community Bank Collective Agreement | 27/05/2009 |
| Fleurieu Community Enterprises Limited Community Bank Collective Agreement | 22/04/2009 |
| Hervey Bay And District Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Freycinet Coast Financial Services Limited Employee Collective Agreement | 11/02/2008 |
| Gilgandra Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Gingin Districts Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| Goodwood/Highgate Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Goomalling And Districts Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| Great Southern Community Financial Services Collective Agreement | 26/05/2009 |
| Harbord Financial Services Limited Community Bank Collective Agreement | 7/05/2009 |
| East Ivanhoe Community Corporation Limited Community Bank Collective Agreement | 29/04/2009 |
| Henty Community Financial Services Ltd Community Bank Collective Agreement | 9/06/2009 |
| Heyfield And District Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Highett Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| Homebush Financial Services Ltd Community Bank Collective Agreement | 19/05/2009 |
| Inner West Community Enterprises Ltd Employee Collective Agreement | 18/03/2009 |
| Mount Beauty And District Community Enterprises Limited Community Bank Collective Agreement | 6/05/2009 |
| Kingsway Community Financial Services Limited Community Bank Collective Agreement | 28/04/2009 |
| Fern Tree Gully And Rowville Financial Services Ltd Community Bank Collective Agreement | 5/05/2009 |
| Kolan/Perry Community Enterprises Limited Community Bank Collective Agreement | 22/04/2009 |
| Ku-Ring-Gai Financial Services Limited Community Bank Collective Agreement | 7/05/2009 |
| Kulin Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| Lockmore Financial Services Limited Community Bank Collective Agreement | 8/05/2009 |
| Gisborne & District Community Enterprises Limited Employee Collective Agreement | 15/10/2008 |
| Mallacoota Community Enterprises Employee Collective Agreement | Approx 2009 |
| Doncaster East Community Financial Services Limited Community Bank Collective Agreement | 29/04/2009 |
| Mansfield And District Community Enterprises Limited Community Bank Collective Agreement | 13/05/2009 |
| Maroondah Community Enterprises Limited Community Bank Collective Agreement | 7/05/2009 |
| Merbein District Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| Midwest Community Enterprises Limited Community Bank Collective Agreement | 1/05/2009 |
| Mooroolbark And District Financial Services Limited Community Bank Collective Agreement | 11/05/2009 |
| Mt Evelyn And Districts Financial Services Limited Community Bank Collective Agreement | 19/05/2009 |
| Mukinbudin Community Financial Services Limited Community Bank Collective Agreement | 11/05/2009 |
| Murrimboola Financial Services Limited Community Bank Collective Agreement | 9/06/2009 |
| Murrumbeena Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| Narrandera District Investments Limited Community Bank Collective Agreement | 9/06/2009 |
| Nightcliff Community Enterprises Limited Employee Collective Agreement | 25/08/2008 |
| Wallan And District Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| North Central Financial Services Limited Community Bank Collective Agreement | 11/05/2009 |
| North Perth Community Financial Services Employee Collective Agreement | 12/05/2009 |
| North Ryde Community Finance Limited Community Bank Collective Agreement | 26/05/2009 |
| Oak Flats Financial Services Limited Employee Collective Agreement | 26/05/2009 |
| Community Financial Services Victoria Limited Community Bank Collective Agreement | 8/04/2009 |
| Paradise Point Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Parkdale/Mentone East Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| Pinewood Community Financial Services Limited Community Bank Collective Agreement | 29/04/2009 |
| Pingelly Brookton Community Financial Services Limited Collective Agreement | 26/05/2009 |
| Plantagenet Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Port Lincoln Community Enterprises Limited Community Bank Collective Agreement | 22/04/2009 |
| Roleystone-Karragullen Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Rushworth And District Financial Services Limited Community Bank Collective Agreement | 8/05/2009 |
| Rye And District Community Financial Services Limited Community Bank Collective Agreement | 1/05/2009 |
| San Remo District Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Sandringham Community Financial Services Limited Community Bank Collective Agreement | 29/05/2009 |
| South Burdekin Community Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Yarraman Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| Stonnington Community Financial Services Ltd Community Bank Collective Agreement | 7/04/2009 |
| Strathmore Community Services Limited Community Bank Collective Agreement | 13/05/2009 |
| Tongala And District Financial Services Limited Community Bank Collective Agreement | 8/05/2009 |
| Toodyay And Districts Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
| Tumbarumba Financial Services Limited Community Bank Collective Agreement | 9/06/2009 |
| Upper Yarra Community Enterprise Ltd Community Bank Collective Agreement | 26/05/2009 |
| Valley Community Financial Services Ltd Community Bank Collective Agreement | 8/05/2009 |
| Wandin Seville Financial Services Limited Community Bank Collective Agreement | 19/05/2009 |
| Hastings & District Community Enterprises Limited Employee Collective Agreement | 16/05/2008 |
| Blackburn District Financial Services Limited Community Bank Collective Agreement | 29/04/2009 |
| Woodstock Financial Services Limited Community Bank Collective Agreement | 19/05/2009 |
| Wydcom Financial Services Limited Community Bank Collective Agreement | 26/05/2009 |
| Wyong Town Financial Services Limited Community Bank Collective Agreement | 22/04/2009 |
| York And Districts Community Financial Services Limited Community Bank Collective Agreement | 12/05/2009 |
[1] [2023] FWCFB 105.
[2] [2023] FWCFB 122 at [4].
[3] [2023] FWCFB 105 at [18].
[4] See Suncoast Scaffolding Pty Ltd id and Applications by APESMA [2023] FWCFB 137 at [31].
Printed by authority of the Commonwealth Government Printer
<PR769032>
0
3
0