Fair Work Ombudsman v Commonwealth Bank of Australia [2024] FCA 81

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Commonwealth Bank of Australia [2024] FCA 81 File number: NSD 1049 of 2021

Judgment of: BROMWICH J

Date of judgment: 15 February 2024

Catchwords: INDUSTRIAL LAW – determination of civil penalties for admitted breaches of ss 50 and 345 of the Fair Work Act 2009 (Cth) by a major bank, Commonwealth Bank of Australia (CBA), and a major related financial institution, Commonwealth Securities Limited (CommSec) – primary purpose of deterrence in civil penalties determination – where contraveners not only admitted to the contraventions, but also investigated, remediated and sought to eliminate the risk of repeat contraventions – where contraveners failed to comply with obligations to ensure that employees were better off overall under individual agreements as compared to applicable enterprise agreements – where contraventions on or after 15 September 2017 were "serious contraventions" for the purposes of s 557A of the Fair Work Act – where contraveners misrepresented that employees would be better off overall under individual flexibility arrangements – where a contravener is no longer an employing entity – where substantial dispute between the regulator and the contraveners as to the appropriate quantum of penalties – DECISION: extensive declarations of contravention made; penalties imposed totalling $7,310,000 upon CBA and totalling $3,030,000 upon CommSec, both to be paid within 60 days

Legislation: Fair Work Act 2009 (Cth) ss 12, 202, 345, 557, 557A, 557B, 570 Criminal Code (Cth) Pt 2.5 Workplace Relations Act 1996 (Cth) Banking, Finance and Insurance Award 2010 Banking, Finance and Insurance Award 2020