Finance Sector Union of Australia (NSW) v Director General, Department of Commerce (NSW)

[2008] NSWADT 338

CITATION:

Finance Sector Union of Australia (NSW) v Director General, Department of Commerce (NSW) & anor [2008] NSWADT 338

DIVISION:

General Division

PARTIES:

APPLICANT
Finance Sector Union of Australia (NSW)

1ST RESPONDENT
Director General, Department of Commerce (NSW)

2ND RESPONDENT
Commonwealth Bank of Australia

FILE NUMBER:

073368

HEARING DATES:

19 - 20 November 2008

SUBMISSIONS CLOSED:

25 November 2008

 
DATE OF DECISION: 

18 December 2008

BEFORE:

Handley R - Deputy President

CATCHWORDS:

Shops & Industries Act 1962 – approval for weekend trading - whether approval should be conditional

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Shops & Industries Act 1962
Shop Trading Act 2008
Bank and Bank Holidays Act 1912
Interpretation Act 1987
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008
Workplace Relations Act 1996 (Cth)

CASES CITED:

Esber v Commonwealth of Australia (1992) 174 CLR 430

REPRESENTATION:

APPLICANT
A Moses SC, barrister
T Shariff, barrister

1ST RESPONDENT
S Free, barrister

2ND RESPONDENT
E Raper, barrister

ORDERS:

The decisions of the Director General of the Department of Commerce dated 31 October 2007 are varied by deleting the condition to which the approvals are subject and, in both cases, substituting the following condition:
Except for staff who freely enter into an agreement specifically providing for work at weekends, work performed at weekends by staff engaged or employed by the Commonwealth Bank of Australia shall be undertaken on a voluntary basis and in accordance with the Bank’s application for an approval dated 12 September 2007 and its subsequent letter dated 26 October 2007.

1 The NSW Branch of the Finance Sector Union of Australia (‘the FSU’) has applied for a review of two decisions of a delegate of the Director General of the NSW Department of Commerce (‘the Department’) made under the Shops & Industries Act 1962 (‘the SI Act’) permitting weekend trading by the Commonwealth Bank of Australia (‘the CBA’) in NSW.

Background

2 On 31 October 2007, the Assistant Director General of the Department granted approval to the CBA under section 6(3) of the SI Act:

“to open all existing and future branches from time to time in New South Wales on any Sunday between the hours of 9.30am and 4.00pm (or between such other hours as may be notified by the Department of Commerce from time to time).”

The approval was subject to the following condition:

“That work performed in New South Wales on a Sunday by staff employed by the Commonwealth Bank of Australia shall be undertaken as set out in the Bank’s application for an approval dated 12 September 2007, and in the Bank’s letter of 26 October 2007.”

3 On the same day, the Assistant Director General of the Department, acting pursuant to section 8(1) of the SI Act, varied the approval granted to the CBA on 3 July 2006 by approving the CBA’s:

“opening its branches on any Saturday (other than a Saturday which is a bank holiday within the meaning of section 15 of the Banks and Bank Holidays Act 1912) between the hours of 9.30am and 4.00pm, or opening between such other hours as may be notified by the Department of Commerce from time to time ...”

The approval was subject to the following condition:

“That work performed in New South Wales on a Saturday by staff employed by the Commonwealth Bank of Australia shall be undertaken as set out in the Bank’s application for a variation dated 12 September 2007, and in the Bank’s letter of 26 October 2007.”

4 By letter dated 8 November 2007, the Department informed the Secretary of the NSW/ACT branch of the FSU, Geoff Derrick, of the decisions to grant/vary the approvals. Mr Derrick sought an internal review of these decisions. After an internal review, the decisions were affirmed and Mr Derrick was notified of this by letter dated 29 November 2007. On 10 December 2007, the FSU applied to the Tribunal for a review of the decisions dated 31 October 2007. The review application was made pursuant to section 9(2) of the SI Act, which enables a representative of an industrial organisation to which employees of a bank belong, to apply to the Tribunal for a review.

Jurisdiction

5 The SI Act was repealed by the Shop Trading Act 2008, which commenced on 1 July 2008. The relevant provisions of the SI Act dealing with the opening of banks now appear in Sch 6 of the Banks and Bank Holidays Act 1912 (‘the BBH Act’). Clause 5 of Schedule 6 provides that existing approvals under the SI Act are taken to have been granted under Schedule 6. The right to seek a review by the Tribunal now appears in clause 4. However, there is otherwise no provision in the new legislation dealing with applications pending before the Tribunal at the time of the repeal of the SI Act.

6 The Department submitted that the Tribunal nevertheless retains jurisdiction to deal with the FSU’s application on the ground that either clause 5 necessarily implies that a pending Tribunal application is to be treated as if it were an application under Schedule 6, or, alternatively, section 30(1) of the Interpretation Act 1987 provides that such a repeal does not affect a right or remedy accrued at the time when the repeal took effect. Neither the FSU nor the CBA took issue with the Department’s submissions on this jurisdictional issue. The FSU submitted that the application should be treated as if the SI Act had not been repealed, referring to the High Court decision in Esber v Commonwealth of Australia (1992) 174 CLR 430, at 440-441, on the issue of accrued rights.

7 In my view, the Department’s reasoning on this issue is sound and I should adopt that reasoning. That being so, I find that the Tribunal has jurisdiction to review the Department’s two approvals in issue.

The Relevant Legislation

8 Section 6(1) of the SI Act (now clause 1(1) of Schedule 6 of the BBH Act) provides that a bank can apply to the Director General of the Department for approval to open the bank, or one or more branches of the bank, in NSW on Saturdays or Sundays or both. Section 6(3) (now clause 1(3) of Schedule 6 of the BBH Act) provides that the Director General may grant an approval unconditionally or subject to conditions.

9 Section 6(4) and (5) of the SI Act (clause 1(4) and (5) of Sch 6 of the BBH Act) state:

(4) In determining an application for an approval, the Director-General is to consider whether granting the approval would be in the interests of the public, taking into account the likely effect of granting the approval on particular sections of the public, including customers of the bank concerned in any particular area (whether or not an area the subject of the application) and persons employed or engaged (whether or not by the bank) to perform services for the bank.

(5) Nothing in subsection (4) limits the matters that the Director-General may consider in determining an application for approval.

10 Section 6(8) (now clause 3(8) of Schedule 6 of the BBH Act) states that the Director General “may prepare guidelines relating to the type of information that may be required in connection with an application under this Part”.

11 Section 8(1) (now clause 3(1) of Schedule 6 of the BBH Act) provides that the Director General may, at the request of the bank that holds the approval or on the Director General’s own initiative, vary the conditions of an approval.

The FSU’s Evidence

12 The FSU filed affidavits dated 12 June 2008 and 16 October 2008 provided by Geoff Derrick, the Secretary of the NSW/ACT branch of the FSU, who also gave oral evidence at the hearing.

Geoff Derrick

13 In his affidavit dated 12 June 2008, Mr Derrick stated that in the Department’s letter to the FSU dated 3 July 2006, notifying the FSU of the Department’s conditional approval of Saturday trading by the CBA, the Department stated that the approval was subject to the following condition:

“2 Work performed on Saturdays shall be undertaken on a voluntary basis as set out in the Bank’s application for an approval dated 22 May 2006.”

14 Mr Derrick referred to a “pro-forma CBA Australian Workplace Agreement” (‘AWA’) dated 19 April 2007, which did not make weekend work voluntary or provide penalty rate payments for such work. He also referred to clause 26 of the 2002 CBA Enterprise Bargaining Agreement (‘EBA’), which does provide for weekend work being voluntary, with those volunteering for such work having the capacity to revert to working only on Monday to Friday on the giving of one month’s notice. The EBA also provides a penalty loading for weekend work.

15 Mr Derrick referred to an internal CBA document, dated about September 2007, providing answers to branch managers on questions relating to seven day trading. This document notes that staff employed under an AWA whose circumstances change so that they can no longer work weekends, should consult with the branch manager who should look at such matters on a case by case basis taking into account the individual’s personal circumstances. Mr Derrick said whether such a request is approved is a matter of discretion for the branch manager. In his later affidavit of 16 October 2008, Mr Derrick referred to the case of an FSU member who had experienced great difficulty in changing from an AWA to the industrial award, ultimately requiring “a direct report to the CEO of the CBA for a decision to be made” (paragraph 6(l)).

16 Mr Derrick referred to a draft CBA memorandum issued on 17 September 2007 and an email dated 2 October 2007 both of which refer to weekend working being entirely voluntary. However, in another CBA document, reference is made to employees engaged under an AWA being aware that they will be required to work weekends and, by freely accepting employment, they also accept to work on weekends. He noted that some AWAs contain no penalty rate provisions.

17 Mr Derrick said a CBA weekend trading survey suggests that employees who presently work at a branch which is to open for weekend trading may be swapped out of that branch and asked to work elsewhere if they do not agree to weekend work.

18 Mr Derrick referred to an FSU bulletin ‘Update’, dated 29 September 2007, which refers to a poll of FSU members showing the majority believe it is important that penalty rates should apply to weekend work (79%), that weekend work should be voluntary (73%), and believe that a new collective agreement should provide a safety net for their rights around weekend work (89%). Another survey of FSU members at seven branches which currently trade on Sundays, prepared in late November 2007, indicates that some branch managers are telling staff that those not interested in weekend work may be transferred to other branches. As at 4 June 2008, 27 CBA branches in NSW were trading at weekends. According to local FSU organisers, a further 27 branches are likely to commence weekend trading.

19 Mr Derrick contrasted the position taken by the ANZ and Westpac banks where weekend work is always voluntary. In the case of the ANZ Bank, staff can withdraw from weekend work on giving four weeks notice.

20 In oral evidence, Mr Derrick said that the FSU has a membership of approximately 6,000 in NSW, and 80% of employees in CBA branches are women. He said the FSU does not object to banks trading at weekends and recognises that weekend trading is of benefit to customers, traders and some employees. In the case of employees, this is for a variety of reasons including childcare arrangements and the financial benefit of weekend work.

21 Mr Derrick said he has specific responsibility within the FSU in relation to weekend banking in NSW, on which he reports to the FSU Executive. He has meetings with regional managers of the CBA on approximately a quarterly basis at which they can raise concerns with him. While he will also be occasionally involved in discussions with the CBA over individual grievances, the FSU’s industrial officer usually deals with such grievances. He is not generally involved in enterprise bargaining.

22 In his affidavit dated 16 October 2008, Mr Derrick responded to various matters raised by Ms Gavrilovic in her statement dated 15 August 2008. He stated that the CBA’s decision to change the payment structure for employees working on Saturdays from 1 October 2006 was made unilaterally without negotiation with employees. Where AWAs are silent on the issue of payments for weekend work, payments are discretionary and able to be changed unilaterally. With regard to employees/prospective employees being able to choose whether to accept employment on the terms of an AWA or the relevant EBA, Mr Derrick said some of the information provided to employees/prospective employees is difficult to access and difficult to understand.

23 Mr Derrick’s view, based on his experience of discussions with union members and senior managers, is that CBA branch managers are not adequately skilled or trained to have informed discussions with employees/prospective employees about such matters. Moreover, branch managers may have a preference for engaging an employee under the terms of an AWA because this can make the job of managing staff easier. While AWAs can no longer be offered to new employees following changes to the Workplace Relations Act 1996 from 28 March 2008, Individual Transitional Employment Agreements (‘ITEAs’) continue to be promoted to new employees as well existing staff currently employed on AWAs.

24 Mr Derrick said the FSU is also concerned about CBA’s ongoing use of different legal entities as the legal employer, with the employee being engaged under a common law contract or an ITEA. The result is that where those legal entities are not party to an industrial award or EBA, employees of those entities do not have the protection of those industrial instruments. In such situations, the bargaining position of the employee is not equal to that of the CBA. The CBA’s use of such strategies distinguishes it from other banks.

25 Mr Derrick noted that while Ms Gavrilovic refers to CBA policy being that AWA employees will not be required to work on weekends, such policy can be unilaterally changed at any time, and is often not well known among employees. Moreover, such policy is not enforceable and, where there is a failure to follow it, there is no readily accessible method of redress for the employee. Mr Derrick said that information received by the FSU from branch managers suggests they are under pressure from the CBA to ensure consistency of staffing at weekends. Such pressure, both perceived and real, is increased when weekend work is not voluntary.

26 Mr Derrick said current negotiations between the FSU and CBA are on the basis that weekend work will remain voluntary. Responding to the CBA’s written submissions in these proceedings, he said that in the view of the FSU, there is neither evidence of an overwhelming demand, nor of overall benefit to the public from opening CBA branches on Sundays. He noted that the Bank has not proceeded with a third stage involving the opening of further CBA branches on Sundays, and he is advised by CBA staff that Sunday trading is generally very quiet and there is poor customer demand for access to branches on Sundays.

27 Mr Derrick said he was involved in negotiating weekend work arrangements with the ANZ, St George and Westpac banks, but not with BankWest. With some of the banks, the terms of the agreement between the FSU and the bank are contained in correspondence. He commented that the St George Bank has a comprehensive procedure for resolving disputes about weekend work, and no employee can be required to undertake weekend work against their will. Further, the consent of all parties is required for changes to standard rosters. BankWest has a procedure in place to deal with disputes over weekend work allowing a non-managerial employee to withdraw from weekend work, and such employees have a legal entitlement to weekend loadings. Nevertheless, Mr Derrick acknowledged that employees entering into a 2007 BankWest Workplace Agreement could be required to work on weekends.

28 In cross-examination, Mr Derrick said that he been involved in the Westpac application to the Department for weekend trading, and recalled that the FSU had commitments from Westpac with regard to weekend work being voluntary. Mr Derrick was referred to the terms of a letter to him from the ANZ Bank, which sets out the ANZ’s commitments on weekend trading. These include weekend work being voluntary and staff being allowed to withdraw from weekend work on providing four weeks notice. He acknowledged the ANZ may ask employees to work at weekends: an agreement between the ANZ and the FSU refers to an arbitration procedure applying in respect of ANZ staff who decline an invitation to work on weekends.

The CBA’s Evidence

29 The CBA filed statements dated 15 August 2008 and 5 November 2008 provided by Suzanne Gavrilovic, and a statement dated 15 August 2008 provided by Tyron Niddrie. Both Ms Gavrilovic and Mr Tyrone gave oral evidence at the hearing, as did Julie Willding.

Suzanne Gavrilovic

30 Ms Gavrilovic is employed by the CBA as head of Workplace Design and Implementation Core Banking. At the time of her statement dated 15 August 2008 she was employed by the CBA as Executive Manager Retail Banking Services (‘RBS’) Strategic HR Support, a position she had held since February 2005.

31 Ms Gavrilovic said that in her capacity as Executive Manager RBS Strategic HR Support, she assisted in the formulation of initial communications with employees about weekend trading in retail banking services. From 2006, she was responsible for the creation of policies and guidelines issued from time to time to branch and area managers concerning the engagement of employees working on weekends. Ms Gravilovic was also part of the team responsible for formulating and implementing pay structures for weekend work. Issues over pay entitlements for such work would be referred to her for resolution. For example, when, initially, there were complaints from staff about Saturday loadings, these were referred to her and changes were made to the loadings to address those complaints.

32 Ms Gavrilovic noted that the original approval for Saturday trading dated 3 July 2006 was subject to a condition that work on Saturdays was to be undertaken on a voluntary basis. Of around 60 branches opening on Saturdays nationally, 25 branches were initially open in NSW for four hours, either between 9.30am and 1.30pm or between 10.00am and 2.00pm. All branch employees had the option of working on weekends. No employee was compelled to do so. However, since 18 September 2007, some employees have been employed under an AWA on the basis that they are rostered to work on weekends.

33 Ms Gavrilovic said about 20 employees have been engaged specifically to work on weekends. She acknowledged that while the AWA under which they are employed provides a salary loading for weekend work and states that employees may choose to be employed under the CBA Employees Award 1999 or under the CBA’s retail banking services EBA 2002, it does not otherwise refer to weekend work. There have been numerous versions of AWAs. While some are silent on payment for weekend work, all employees undertaking such work have received additional loadings. Ms Gavrilovic acknowledged that where a payment structure is not included in an AWA, weekend loadings are a matter of managerial discretion.

34 The CBA’s retail banking services EBA 2002 contains provisions stating weekend work is undertaken on a voluntary basis and employees are able to opt out of such work by giving one month’s written notice. The majority of branch employees working on weekends are employed pursuant to this EBA. In NSW, 1,112 staff employed under the EBA have worked on weekends at some time in the past 12 months. A further 301 staff employed on individual contracts have done so in that period.

35 Ms Gavrilovic said employees who are engaged under AWAs but who are not specifically engaged to do weekend work, have never been compelled to undertake weekend work – it has always been on a voluntary basis. This remains CBA policy. All AWAs include a clause allowing the employee to elect to accept employment under the CBA Employees Award 1999 or the relevant EBA. Branch managers were informed of the requirement to offer choice to existing and new employees who are offered an AWA.

36 Ms Gavrilovic said that since the inception of weekend trading in 2006, there has been a growing waiting list of people who want to work on weekends, particularly in NSW. However, because weekend work is voluntary, there have been staffing issues over peak holiday periods. In some areas, not being able to specifically roster employees for weekend work also leads to rostering and resourcing difficulties. The CBA has concerns about the quality of service delivery if weekend staffing is not consistent.

37 Ms Gavrilovic said that as a result of the recent legislative changes, the CBA can no longer offer its employees AWAs. Since 28 March 2008, new employees are instead offered an ITEA conforming with the new legislation and containing a clause identical to that contained in the AWA offering employees the choice of electing to accept employment either under the CBA Employees Award 1999 or the CBA’s retail banking services EBA 2002. Where an employee is employed under an AWA and the AWA expires, the Bank’s policy is that the person’s employment reverts to that under an award.

38 Ms Gavrilovic said there are currently 26 branches in NSW trading on a Saturday and 10 branches trading on a Sunday.

39 In cross-examination, Ms Gavrilovic was referred to an email, dated 29 October 2008, sent by the relieving branch manager of the Penrith area office of the CBA indicating that unless sufficient employees volunteered to work on two weekends over the Christmas and New Year period of 2008, then she would have to “roster people on regardless whether they have said yes or no”. Ms Gavrilovic said she was not aware of this email, which is contrary to CBA policy and should not have been sent. She acknowledged that she is not aware of what might be happening in all CBA branches unless this is brought to her attention.

40 Ms Gavrilovic was also referred to an email to a CBA area manager from an employee seeking approval to a 12 month ‘career break’ in October 2008. The area manager responded approving the career break subject to “the proviso that you work one day per month weekend trade” at a specified branch. Again, Ms Gavrilovic said this was not in accordance with CBA policy.

41 Ms Gavrilovic said she would have had discussions with Tyrone Niddrie over weekend trading because he was part of the project team. She was told that the application for the variation of the CBA’s 2006 approval for Saturday trading was to provide greater flexibility in employing staff; in particular, so that the Bank could advertise specific roles including weekend work. She said that between 30 and 40 people have applied for weekend positions.

Tyrone Niddrie

42 Mr Niddrie stated that he is employed by the CBA as Executive Manager for Retail Distribution Strategy. In about April 2006, he was asked to investigate the feasibility of introducing Saturday trading at the Bank. At that time, the Westpac, St George and ANZ banks were offering banking on Saturdays. As a result of his investigation, he formed the view it was in the Bank’s interest to consider weekend trading and, in conjunction with his staff, he prepared the Bank’s first application for such trading. The Department granted approval for Saturday trading on 3 July 2006.

43 Mr Niddrie stated that in about September 2007, he was asked by his manager to assist in collating customer feedback on weekend trading for the purpose of the Bank’s most recent application for such trading. However, he had very little involvement in the CBA’s application for approval made to the Department at that time, apart from being present at one meeting in case his input arising from his involvement in the Bank’s first application in May 2006 was required. He was only present at that meeting for about 30 minutes and made no contribution.

44 In cross-examination, Mr Niddrie was asked about the CBA’s initial application for Saturday trading made in May 2006. He said he understood that only staff who volunteered would be asked to work at weekends. With regard to the results of a customer survey conducted for the CBA in December 2006, Mr Niddrie agreed that the results of this indicated that 59% of those surveyed said they would never or only occasionally visit a branch of the Bank on Saturdays although, on the other hand, over 80% said they would occasionally or quite often do so.

Julie Willding

45 Ms Willding has been an area manager of the CBA for the past two years, including the past two months when she has been area manager for the Penrith area. She is responsible for running the area, including ‘HR’ for staff at branches in the area. She said she has knowledge of the Bank’s AWAs and EBA.

46 Ms Willding was shown a copy of an email, dated 29 October 2008, sent by the relieving branch manager of the CBA’s Penrith area office, indicating that unless sufficient employees volunteered to work on two weekends over the Christmas and New Year period of 2008, then she would have to “roster people on regardless whether they have said yes or no”. Ms Willding said that she had spoken to the relieving officer who told her that she was having difficulty in staffing the Penrith branch over the Christmas period. She told the relieving officer to send an email to the broader Sydney region asking for expressions of interest from volunteers. The officer later confirmed that she had done so, although Ms Willding did not see a copy of the email until today.

47 Ms Willding was also shown a copy of email correspondence between herself and an employee at one of the branches in her area in October 2008. The employee was seeking approval for a 12 month ‘career break’. Ms Willding responded, approving the career break subject to “the proviso that you work one day per month weekend trade” at a specified branch. She said the decision had previously been approved by her “boss”. Ms Willding acknowledged that she had not been aware that imposing a requirement that the employee work one day at weekends was contrary to the EBA. She was subsequently informed of this by her line manager, who asked her to contact the employee about this. Ms Willding did so by telephone on 10 November 2008, apologising to the employee for the mistake, and telling her that approval of her career break was unconditional.

The FSU’s Submissions

48 Mr Moses, for the FSU, noted that the Department’s approval dated 31 October 2007 was subject to the condition that work performed on both Saturday and Sunday be undertaken “as set out in the Bank’s application for approval dated 12 September 2007, and in the Bank’s letter of 26 October 2007”. Mr Moses said “the conditions relied upon in those letters are unspecified and unclear”, but in essence are that: (a) employees and new recruits will be given the option of employment under the CBA Employees Award 1999 or the CBA retail banking services EBA 2002 as an alternative to employment under an AWA; (b) the CBA has undertaken to inform existing and new employees that employment under an AWA includes the requirement to work weekends; and (c) employees engaged pursuant to an AWA will receive additional loadings for work on Saturdays and Sundays and a higher base rate of pay when compared to employees engaged under the EBA.

49 Mr Moses submitted that the conditions presume that engagement under an AWA is indicative of consent by an employee to work weekends. It fails to take account of the fact that employees already engaged under an AWA at the time of the 3 July 2006 approval or at the time of the further approval on 31 October 2007 were not given notice of the possibility of being required to work on weekends at the time of entering into the AWAs, and their consent to working on weekends was never obtained. It is unclear how many employees are affected. The approval dated 31 October 2007 is thereby contrary to the basis of the 3 July 2006 approval, as was pointed out by the FSU in a letter to the Department dated 15 November 2007.

50 Mr Moses said the FSU is concerned that, because of the inequality of bargaining power between the CBA and its employees, there is no genuine choice for the employee. Furthermore, some AWAs do not guarantee a weekend loading. It would seem, therefore, that weekend loadings are subject to change at the discretion of the CBA. Ms Gavrilovic’s evidence was that this occurred - apparently unilaterally - after the introduction of Saturday trading when staff complained about the loadings. Mr Moses said the situation with the CBA is different to that with the ANZ and Westpac banks both of which have given enforceable undertakings not to force employees to work on weekends and only to require employees to work weekends if they have volunteered to do so. (At the time of the decision on 31 October 2007, the NAB had not sought a licence to trade on weekends.)

51 Mr Moses submitted that the Director General failed to give adequate consideration to the social impact of the proposed changes. He noted that employees working in branches are predominantly female and many are working mothers. No consideration was given to the work/family balance.

52 In oral submissions, Mr Moses noted that the approvals under review are indefinite. In undertaking its review, the Tribunal stands in the shoes of the original decision-maker and is required to undertake a balancing of the competing interests, relying on logical or rationally probative evidence. The Tribunal should make its decision in the light of the material before it and is not limited to the material available at the time of the original decision. Mr Moses noted the statutory criteria set out in section 6 of the SI Act. He submitted that the Director General’s ‘Regulation of Weekend Trading – Guidelines’ (made pursuant to section 6(8) of the SI Act) do not “shape, constrain nor inform the correct and preferable decision the Tribunal ought properly make in considering the statutory criteria”.

53 Thus, the Tribunal should undertake its review in the light of the WorkChoices reforms and the fact that, since 28 March 2008, AWAs can no longer be entered into. However, AWAs lodged prior to the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 taking effect on 28 March 2008 or lodged within 14 days of its commencement, will continue to operate until terminated (not later than five years from lodgement) or replaced; ITEAs can only be entered into in the transitional period between 28 March 2008 and 31 December 2009: section 352 Workplace Relations Act 1996. Mr Moses noted that in taking into account the likely effect of granting the approval on persons employed or engaged to perform services for the CBA (section 6(4) SI Act), regard should be had to the entitlements of employees under relevant industrial instruments, agreements and contracts.

54 Mr Moses submitted there is no evidence to indicate any need for the removal of the condition included in the approval of 3 July 2006 that “Work performed on Saturdays shall be undertaken on a voluntary basis”. The CBA has failed to explain why it opposes the imposition of a condition requiring that weekend work be voluntary. If it is employing staff specifically to undertake weekend work why is it opposing the imposition of a condition as to work being voluntary? The CBA is now the only bank requiring weekend work. Conditions should be placed on the CBA similar to the arrangements for other banks.

55 Mr Moses noted that Ms Gravilovic referred to an AWA that she said was used in the case of employees employed specifically for weekend work after 18 September 2007. However, he said the wording of the document indicates that it is not limited to use in respect of employees engaged specifically to undertake weekend work, but can be used in the case of all staff employed by the Bank. Mr Moses submitted that the clause of the AWA headed “Choice” is difficult to interpret and understand especially in view of the reference to the CBA Employees Award 1999 and the CBA EBA 2002, in respect of which the person is directed to a website for a copy. No explanation is given as to what the choice between employment under the AWA or EBA entails, and there is no explanation as to the effect on work at weekends.

56 . Mr Moses said the evidence of a CBA area manager was that she was not aware of what Ms Gravilovic referred to as CBA policy stating that employees cannot be required to work at weekends, and there is no evidence of there being any written policy to this effect. The FSU has produced evidence of emails being sent to staff requiring weekend work. The FSU’s objective is to raise concern about what might happen in the future if there is no clearly stated condition requiring weekend work to be voluntary.

57 Mr Moses submitted that the correct and preferable decision for the Tribunal is to set aside the approvals dated 31 October 2007 and substitute decisions approving weekend opening subject to conditions that weekend work is voluntary for staff and that any person employed or engaged to perform such work will be allowed to withdraw from such work by providing four weeks notice to the branch manager.

The Department’s Submissions

58 Mr Free, for the Department, noted that the correct and preferable decision must be determined with reference to the statutory criteria in section 6 of the SI Act and the material now before the Tribunal. He submitted that the Director General’s ‘Regulation of Weekend Trading – Guidelines’ (made pursuant to section 6(8) of the SI Act), although primarily concerned with the application and approval process, “assist in the present context as they provide a structure for assessing various factors bearing on the public interest analysis”.

59 Mr Free observed that there is no apparent dispute between the FSU and the CBA about the public interest generally in facilitating weekend trading by banks. The issue in dispute is the effect of such trading on CBA employees having regard to their employment conditions and CBA’s management practices.

60 Mr Free said the Director General neither opposes nor supports the conditions proposed by the FSU, but agrees it is open to the Tribunal to substitute decisions subject to such a condition.

The CBA’s Submissions

61 Ms Raper, for the CBA, noted that making the correct and preferable decision will involve “a balancing of all competing interests: those of the banks, those of local commercial enterprises, the rights and interests of customers and those of bank employees”. She said the Director General’s ‘Regulation of Weekend Trading – Guidelines’ are relevant in this consideration. The only dispute is with respect to the potential effect on employees who are employed on individual agreements, such as AWAs. She contended that “[t]he evidence reveals the transparency of choice for employees”. Employees working on the weekend receive significant financial benefits in addition to more flexible working arrangements. Between the inception of weekend trading in 2006 and the application for the extension of trading in September 2007, no employee was compelled to work on weekends. However, since September 2007, some employees have been engaged under AWAs to work specifically on weekends.

62 Ms Raper said there has been a consistent demand by staff to work on weekends. However, there has been some difficulty in rostering staff at peak weekends particularly during holiday periods, and “ad hoc rostering does not provide a sufficiently certain and consistent client service”.

63 Ms Raper said that for the CBA to remain competitive, it must be able to trade on weekends and ensure consistent client service. All the banks except the NAB trade at weekends and the NAB is also now considering doing so. There is no additional cost to the customer. The evidence reveals overall support by the general community. Local businesses will benefit through increased foot traffic and the opportunity to carry less cash on their premises.

64 Ms Raper submitted that the FSU is seeking “to use the review process as a platform for the determination of industrial entitlements”. The Tribunal is not an appropriate forum for this. She submitted that it is not open to the Tribunal to arbitrate between the parties on industrial matters. There are sufficient safeguards in place to protect employees’ interests in the industrial sphere. In any event, there is no evidence of employees being compelled to work on weekends.

65 Ms Raper acknowledged that the AWA used for employees who are specifically employed to undertake weekend work was also used for employees who work normal hours. The latter can always volunteer for weekend work. Ms Raper noted that the approvals dated 31 October 2007 refer to letters from the CBA which deal with additional payments to employees for weekend work.

66 Ms Raper said the Tribunal should take into account the CBA’s need for employees to work on the weekend. In the past year, 1,112 CBA employees have voluntarily undertaken weekend work. 301 employees engaged under AWAs are involved in weekend work. The issue is one of choice. There is no evidence of any compulsion to work on weekends or of employees not having choice. She noted that other banks have negotiated varying types of arrangement with the FSU and can require employees who have elected to undertake weekend work to do so, subject to an arbitration clause.

Discussion

67 In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: section 63(1) of the Administrative Decisions Tribunal Act 1997. The Tribunal will consider the merits of the decision, and may exercise all the functions and powers of the original decision-maker (section 63(2)).

68 Section 6(4) and (5) of the SI Act state:

(4) In determining an application for an approval, the Director-General is to consider whether granting the approval would be in the interests of the public, taking into account the likely effect of granting the approval on particular sections of the public, including customers of the bank concerned in any particular area (whether or not an area the subject of the application) and persons employed or engaged (whether or not by the bank) to perform services for the bank.

(5) Nothing in subsection (4) limits the matters that the Director-General may consider in determining an application for approval.

69 Thus, while the public interest is a paramount consideration, the decision-maker is not limited as to the matters that may be taken into consideration. Where there are competing interests, a balancing of competing interests may be required, which may be facilitated by the power of the decision-maker not only to grant an approval unconditionally, but also subject to conditions (section 6(3) SI Act).

70 The Department and the CBA both referred the Tribunal to the Director General’s ‘Regulation of Weekend Trading – Guidelines’ as being relevant to its consideration. However, as the Department notes, those guidelines are primarily concerned with the application and approval process, and do little more than list relevant matters to be addressed in an application, such as the benefits to customers, the general public, shopkeepers and other interested parties, as well details of the applicable industrial awards or agreements covering employees or other persons who may be involved in weekend trading by the bank.

71 There is no dispute as to the benefits of weekend trading for customers, traders and some employees, as Mr Derrick acknowledged in his evidence (see par 19 above). In the case of employees, there may be a variety of benefits, including flexibility of working hours, childcare arrangements and financial benefits. What is in dispute is whether, as the FSU contends, a condition should be included in the approvals specifying that weekend work must be voluntary and that a person engaged in such work should be able to withdraw from such work on giving four weeks written notice.

72 The CBA submits that it is not appropriate for employment conditions to be included in the terms of the approval and that this is more appropriately dealt with in the industrial sphere. The Department neither opposes nor supports the conditions proposed by the FSU.

73 I note the second condition in the approval for the CBA to trade on Saturdays granted on 3 July 2006, which was removed on the variation of that approval on 31 October 2007, stated: “Work performed on Saturdays shall be undertaken on a voluntary basis as set out in the Bank’s application for approval dated 22 May 2006.” The CBA application for a variation of this approval and for approval to open its branches on Sundays was set out in a letter to the Department dated 12 September 2007. In the letter, the CBA sought “the removal of the current condition that work performed on Saturdays and Sundays must be undertaken on a voluntary basis”. The CBA referred to its having advised the FSU of its intention to seek approval to trade on Saturdays and Sundays without the condition that weekend work must be undertaken on a voluntary basis, and of its intention to engage in further consultation with the FSU in coming weeks. The CBA also noted that the FSU had supported BankWest’s “recent application to trade on weekends on a non-voluntary basis and that this application was approved by the Department”. The letter did not otherwise explain the need to remove the condition requiring that weekend work should be voluntary.

74 By letter dated 14 September 2007, the Department invited Mr Derrick to comment on the CBA’s application, “to enable the Director-General to consider the interests of the CBA employees”. Mr Derrick replied on 21 September 2007 opposing any variation of the CBA’s current weekend trading approval. He stated that there was “no demonstrated need to make weekend work compulsory in order to meet CBA’s business requirements”, noting that the CBA had managed to fully staff its opening of branches on Saturdays with volunteer staff. Mr Derrick said the interests of CBA employees were “firmly aligned with the maintenance and expansion of voluntary weekend work protections”. He went on to quote the results of a survey of CBA employees strongly supporting the position that weekend work should be voluntary. He said the FSU was consulting the CBA about the need for a new collective agreement that better protected employees’ rights and entitlements. Progress towards such an agreement would be severely hampered by a variation of the approval in the manner sought by the CBA.

75 In a letter faxed on 9 October 2007, the Department invited the CBA to comment on the views expressed by Mr Derrick. In a briefing note to the Director General of the same date, the Assistant Director General noted:

“Several recent approvals have also required that the bank use a voluntary roster to staff branches on weekends. Anecdotal evidence indicates that the banks have no difficulty in meeting this condition, as many staff enjoy the higher remuneration payable on weekends under some industrial arrangements.”

76 In a submission dated 19 October 2008, the Social Issues Executive of the Anglican Church Diocese of Sydney opposed the application for approval of Sunday trading. They drew attention to the likely negative impact on the lives of employees who would work on Sundays, on their families and on the wellbeing of the community, to concerns about potential duress being placed on employees to work on Sundays and the likelihood of employees being inadequately compensated for such work, and to the existing availability of sufficient hours for banking during the week, on Saturdays or via internet banking.

77 In a briefing note for the Deputy Director General prepared by the Department’s Acting Principal Policy Analyst, dated 23 October 2007, the Analyst commented:

“It is not the function of the Director General to determine the industrial entitlements of a bank’s employees under the approval process. This is left to the industrial instruments under which the bank staff are engaged. However, the voluntary staff condition is imposed to ensure the welfare of the employees is taken into consideration by a bank when staffing their weekend branches.”

78 In a letter to the Department dated 26 October 2007, the CBA commented on the views expressed by the FSU. In particular, the CBA commented that apart from employees who are engaged under AWAs specifically on the basis that they may be required to work on weekends, and who are informed of this prior to engagement, weekend work is voluntary and the Bank does not compel staff to work weekends.

“However, it is the Bank’s view that it is not appropriate to include the requirement that weekend work be voluntary as a condition of approval (if granted) as this is a matter more appropriately dealt with under the industrial framework governing the Bank’s weekend work and negotiations between the Bank, the FSU and its employees.

In addition, if employees freely agree to enter into an AWA allowing the Bank to roster them to work on weekends, the Bank does not consider that it would be in the public interest to over-ride such a voluntary agreement through a licence restriction that weekend work be performed on a voluntary basis.”

79 The CBA suggested an alternative for consideration if the Department was not minded to remove the condition as to voluntariness:

“A. The restriction that employees be engaged on a voluntary basis in relation to weekend work continues in relation to existing employees except where the employee freely enters into an agreement such as an AWA which specifically provides for weekend work; and

B. New employees can be engaged on the basis that they work on weekends.”

80 In a briefing note to the Assistant Director General prepared by the Department’s Acting Principal Policy Analyst, dated 31 October 2007, the Analyst commented:

“The legislation does not require or enable the Director General to arbitrate on the working conditions of weekend bank employees. Nor is it a mechanism to facilitate future industrial negotiations. Rather, the legislation aims through the public interest test to ensure employees have the option of working on weekends and receiving appropriate entitlements for doing so.”

The Analyst did not comment on the alternative proposal put by the CBA in its letter dated 26 October 2007.

81 On 31 October 2007, a delegate of the Director General granted the approval for Sunday trading and the variation of the approval for trading on Saturdays dated 3 July 2006. The variation and the approval, the latter with the modifications shown in square brackets below, were subject to the following condition:

“That work performed in New South Wales on a Saturday [or Sunday] by staff employed by the Commonwealth Bank of Australia shall be undertaken as set out in the application for a variation [for an approval] dated 12 September 2007, and in the Bank’s letter of 26 October 2007.”

82 The FSU was notified of the decisions by letter faxed on 8 November 2007. Mr Derrick responded by letter faxed on 15 November 2007 requesting immediate suspension of the approvals on a number of grounds. In particular, Mr Derrick contended that the Director General had not given proper consideration to the effect of the proposal on employees, including as to the issue of the voluntary weekend work. Mr Derrick referred to the provisions of AWAs, some of which make no provision for weekend loadings, and which, he suggested, do not provide adequate protection for employees in an unequal bargaining environment. As a consequence, the Department sought a copy of the AWA under which an employee may be engaged to work on weekends from the CBA. However, on 27 November 2007, the Department affirmed the decision of 31 October 2007 after an internal review.

83 Copies of other approvals granted by the Director General to other banks for weekend trading were produced in evidence at the hearing in these proceedings (and are subject to a confidentiality order, referred to above). A Westpac Bank application to trade on Saturdays (dated 27 February 2003, approved on 9 April 2003) noted that weekend work “will be on a totally voluntary basis and at premium hourly rates” (later stating that work on Saturdays would be paid as overtime at the rate of double time).

84 An approval granted to the St George Bank on 25 June 2003 for specific branches to open on Saturdays and two branches to open on Sundays, was subsequently amended on 1 September 2004 by approving the opening of all St George branches in NSW on Saturdays. The original application (dated 21 May 2003) detailed the specific provisions of the industrial award and EBA dealing with weekend work. For most employees, weekend work appears to be voluntary, unless there are insufficient suitable volunteers, in which case certain categories of employee (depending on the terms of their engagement) may be required to work, but taking into consideration the employee’s needs, circumstances and preferences. Employees who agree to work on weekends can withdraw from such work on giving four weeks written notice or, in some cases, if the terms of their employment include such work, on making a request, in the consideration of which the employee’s reasonable needs will be taken into account. The loadings payable for weekend work are detailed.

85 An approval granted to the ANZ Bank on 21 June 2006 (later varied on 4 April 2007) is specifically in relation to trading on Saturdays and Sundays at Sydney International Airport. A further approval granted to the ANZ Bank on 27 November 2006 in relation to all existing and future branches in NSW for trading on Saturdays stemmed from an application dated 7 November 2006 which detailed the loadings payable for Saturday work and stated that Saturday work is voluntary:

“Staff members who volunteer for the Saturday roster, and subsequently experience a change in circumstances which precludes them from continuing to work Saturday hours may opt out of the Saturday roster by providing four weeks’ written notice to ANZ of their intention to change.”

86 A BankWest application (24 May 2007) for trading on Saturdays and Sundays and its approval (24 July 2007) were in respect of so called ‘greenfield sites’, that is proposed new branches, and not existing retail outlets.

87 I note that the terms of the approvals granted by the Department, while sometimes referring to the letter of application or subsequent correspondence, do not generally contain a specific condition requiring that weekend work should be voluntary. The FSU contended that the industrial situation at the CBA is more complex than that with the other banks because of the greater diversity of agreements/awards under which employees are engaged: the CBA Employees Award 1999, the CBA retail banking services EBA 2002, a variety of AWAs, ITEAs and, perhaps, common law contracts. This was consistent with Mr Derrick’s evidence and that of Ms Gavrilovic.

88 The FSU expressed concern about CBA employees who may be employed under a variety of AWAs, some of which do not specify the hours to be worked or loadings payable in respect of weekend work. The CBA states that except in the case of employees who were specifically engaged to undertake weekend work, weekend work is otherwise voluntary and weekend loadings apply. However, the FSU is concerned that in the case of AWAs that are silent on hours of work and specifically on weekend work and loadings, such as those in existence prior to the 3 July 2006 and 31 October 2007 approvals, employees entered into those agreements without knowledge that they might be required to undertake weekend work and may not, since that time, have given their consent to a change in their conditions of employment. The FSU contends that, as a result, these matters will, essentially, be at the discretion of the CBA.

89 The FSU submits that because of a lack of consistency in the treatment of CBA employees arising from their employment under a number of different awards, industrial agreements or other forms of contract, specific conditions should be included in the approval/variation addressing the issue of voluntariness. This would act as a basic safeguard for employees (something that I note was referred to indirectly in the early departmental briefings referred to above).

90 The FSU drew attention to two specific examples of ignorance/lack of knowledge of what Ms Gavrilovic described as ‘CBA policy’ as to the voluntariness of weekend work. In one case a relieving branch manager indicated her preparedness to roster staff for weekend work regardless of whether they had agreed to this or not. In the other case, an area manager sought to impose a condition requiring occasional weekend work in an approval for a 12 months career break. In both instances, the mistake was corrected. However, the FSU pointed out that while these are two examples that have come to the notice of the FSU, there may well be others that have not come to its notice and remain uncorrected.

91 The FSU also drew attention to the inequality of bargaining power between the CBA and its employees, particularly where employees are engaged under some form of individual agreement. The FSU contends the information provided to prospective employees about the choice of terms of engagement is not easily accessible and is confusing. In some situations, the FSU has been excluded from participating in negotiations over terms and conditions of employment. The FSU is concerned that there is a lack of genuine choice for the employee. A particular concern is that about 80% of CBA branch employees are women for whom flexible working arrangements, particularly if they have children, may be of importance.

92 Section 6(4) of the SI Act specifically directs the Director General, when determining an application for an approval, to consider whether granting the approval would be in the interests of the public. In doing so, the Director General must take into account the likely effect of granting the approval on particular sections of the public, including not only customers, traders and the banks, but also persons employed or engaged to perform services for the banks. In my view, the interests of such staff extend to their family situations and their place in the wider community. Broadly viewed, it can reasonably be contended that their interests include the need to accommodate an appropriate balance between their work and other interests, whether involving family, friends or other activities, including recreation and relaxation.

93 In this case, as stated above, there is no dispute as to the benefits of weekend trading for customers, traders and some employees. The dispute is over whether conditions should be included in the approval as to the voluntariness of weekend work for staff.

94 I note that despite the two examples of ignorance/lack of knowledge of ‘CBA policy’ as to the voluntariness of weekend work to which the FSU drew attention, referred to above, there is no evidence that CBA employees have been compelled to work on weekends. Nevertheless, I am satisfied from the evidence presented by the FSU and from its submissions that there is a lack of clarity as to whether and, if so, on what terms staff employed or engaged by the CBA can be required to perform weekend work. A question posed in submissions by the FSU was, if, as the CBA claims, all those engaged in weekend work do so voluntarily, why does the CBA oppose the imposition of the condition proposed by the FSU so strongly? The CBA appears to be taking an ‘in principle’ position, submitting that the terms and conditions under which employees are engaged or required to undertake weekend work are more appropriately dealt with in the industrial sphere. This position is also reflected in the later departmental briefings referred to above.

95 I agree that the more specific terms and conditions under which employees are engaged should be addressed in industrial agreements and these are not matters that should be included in the approval of trading hours. However, an approval could appropriately include conditions addressing public interests of a more general nature. In my view, there is a broad public interest in weekend work being voluntary so that individuals can choose to pursue their non-work interests, whether involving family, friends or other activities, including recreation and relaxation. In the same way that the Department imposed a general condition to the approval in respect of Saturday trading dated 3 July 2006, requiring that weekend work be voluntary, in my view, the inclusion of a similar condition in the two approvals dated 31 October 2007 is equally appropriate and justifiable in terms of the public interest in safeguarding the voluntariness of weekend work where the terms of engagement of CBA staff lacks clarity. I can see no specific detriment to the CBA, which, in any event, maintains that all weekend work is voluntary.

96 But in my view, the inclusion of a more specific condition like that proposed by the FSU, requiring that any person employed or engaged to perform weekend work should be able to withdraw from such work on giving four weeks written notice to their branch manager, is of a different character. Such a condition is more appropriately included in an industrial agreement addressing the terms and conditions of employment of those engaged to perform weekend work.

Decision

97 In conclusion, the decisions of the Director General dated 31 October 2007 are varied by deleting the conditions to which the approvals are subject and, in both cases, substituting the following condition:

Except for staff who freely enter into an agreement specifically providing for work at weekends, work performed at weekends by staff engaged or employed by the Commonwealth Bank of Australia shall be undertaken on a voluntary basis and in accordance with the Bank’s application for an approval dated 12 September 2007 and its subsequent letter dated 26 October 2007.