Qudos Bank

[2017] FWCA 6869

[2017] FWCA 6869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Qudos Bank
(AG2017/5921)

QANTAS STAFF CREDIT UNION CERTIFIED AGREEMENT 2004

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DEPUTY PRESIDENT SAMS	SYDNEY, 20 DECEMBER 2017

Application for termination of the Qantas Staff Credit Union Certified Agreement 2004.

[1] This is an application, filed on 1 December 2017, by Qudos Bank (the ‘applicant’ or the ‘Bank’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Qantas Staff Credit Union Certified Agreement 2004 (the ‘Agreement’). The Agreement covers 107 employees of the applicant, who work for the Bank in New South Wales, Queensland, Victoria and Western Australia. Relevantly, the Agreement passed its nominal expiry date on 30 November 2007. The application seeks to have the employment conditions of the relevant employees covered instead by the Banking, Finance and Insurance Award 2010 (the ‘Award’).

[2] The provisions of the Act governing applications of this kind, are set out as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employees covered by the agreement;

(b) an employee covered by the agreement

(c) an employee organisation covered by the agreement

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement is:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[3] In a statutory declaration accompanying the application (Form F24C), Ms Wendy Hadenham, Human Resources Manager, said that employees who are covered by the Agreement are paid an annualised salary which is in excess of the minimum salaries provided for in the Agreement. Each employee has an individual contract of employment which sets out their salaries. She said termination of the Agreement would not result in a reduction of any employees’ annualised salary and a number of provisions in the Agreement would be ‘grandfathered’ for existing employees. These include:

•  Clause 22: additional bank holiday;

•  Clause 23: additional personal leave;

•  Clause 23: more beneficial bereavement leave than provided under the NES;

•  Clause 26: more beneficial redundancy entitlements than provided under the NES;

•  Clase 26: more beneficial long service leave in circumstances of redundancy than provided by state legislation.

The Bank will also move to a 38 hour working week, rather than 40 hours under the Agreement, without loss of pay.

[4] Ms Hadenham described the consultation process that had taken place prior to making this application. On 1 November 2017, she had sent an email to all employees advising them of the intention to apply to terminate the Agreement and that each employee would be provided a new contract of employment which included the (then) existing entitlements, as well as new entitlements. During the period between 31 October to 23 November 2017, representatives from Human Resources met with each affected employee. Employees were provided with a copy of the new contract of employment, and an accompanying letter which explained the impact the termination of the Agreement would have on the employee, and advising that they could accept the offer by providing a signed copy of the contract by 24 November 2017. Of the 107 employees who were provided with the contracts, 95 returned a signed copy of the contract of employment, 2 employees elected not to sign, 3 employees were away on extended leave, and 1 employee requested further time to consider. There are a further 6 employees who commenced employment after 3 October 2017 who were not offered the new contracts.

[5] Ms Hadenham submitted that terminating the Agreement is not contrary to the public interest on the basis that it will not affect the public as a whole, and would provide award coverage for the vast majority of employees who are covered by the Agreement. She explained how Qudos Bank was formally known as the Qantas Credit Union, and Qantas Staff Credit Union (the Credit Union). In April 2016, the Credit Union was rebranded Qudos Bank. Previously, there had been a strong association with Qantas. As a consequence, industrial conditions which Qantas applied to its staff, also flowed through to the Credit Union. She said the Bank operates exclusively in the banking and finance industry. The Agreement has now been expired for ten years and it no longer provides the operational efficiencies and flexibility the Bank requires. Terminating the Agreement would remove the restrictive legacy provisions of the Agreement and would enhance the Bank’s ability to be competitive in the marketplace and ease its administrative burden. She said that the Bank anticipates that it would increase productivity, job retention and the eventual expansion of the Bank.

[6] Having considered the application, the accompanying statutory declaration, the views of the parties and the terms of the Agreement, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. I have taken into account the views of the employees (as expressed by their overwhelming support of the Agreement’s termination) and the employer as well as the likely effect on both. Accordingly, the Qantas Staff Credit Union Certified Agreement 2004 is terminated. Pursuant to s 227 of the Act and with the consent of the parties, the termination is to take effect on and from 20 December 2017.

DEPUTY PRESIDENT

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