A.C.N. 611 036 689 Pty Ltd

[2016] FWC 8681

[2016] FWC 8681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 and s.319 – Transfer of instrument

A.C.N. 611 036 689 Pty Ltd
(AG2016/6961)

COMMISSIONER WILLIAMS PERTH, 5 DECEMBER 2016

Transfer of instrument.

Background

[1] A.C.N. 611 036 689 Pty Ltd (the Applicant) entered into an agreement with Diab Engineering Pty Ltd (Diab) to acquire 100% of its business. Diab was an established industrial maintenance and fabrication services business, providing services to many of Australia’s leading resources companies.

[2] The two current enterprise agreements covering Diab’s employees are the Diab Engineering Pty Ltd Enterprise Agreement – Operations [AE405340] (Diab Operations Agreement) and the Diab Engineering Pty Ltd Enterprise Agreement – Administration [AE403457] (Diab Administration Agreement).

[3] On or around 21 November 2016 the Applicant’s name changed to Diab Engineering Pty Ltd.

[4] This application is made pursuant to sections 318 and 319 of the Fair Work Act 2009 (the Act). The application seeks orders that the Diab Operations Agreement and the Diab Administration Agreement cover:

(a) the Applicant;

(b) transferring employees who will perform, or are likely to perform the transferring work for the Applicant;

(c) new non-transferring employees who will perform or are likely to perform the transferring work for the Applicant.

Legislation

[5] Sections 318 and 319 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:

“318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.


Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.

319  Orders relating to instruments covering new employer and non-transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

Consideration

[6] The Applicant has provided a witness statement of Ms Corrina Tolomei, General Manager - People addressing some of the relevant considerations in sections 318 and 319 of the Act.

[7] Taking in to account the matters to be considered in sections 318(3) and 319(3) of the Act and the submissions made by the Applicant I am satisfied that it is appropriate that this application be granted and orders to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

D. Fletcher of K&L Gates, representative for the Applicant.

Hearing details:

2016.

Perth:

December 2.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588168>