ACR Maintenance Pty Ltd
[2017] FWC 564
•9 FEBRUARY 2017
| [2017] FWC 564 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
ACR Maintenance Pty Ltd
(AG2017/106)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 9 FEBRUARY 2017 |
Application for an order relating to instruments covering new employer and transferring employees in agreements.
[1] On 16 January 2017, ACR Maintenance Pty Ltd (the Applicant) lodged an application in the Fair Work Commission (the Commission) for an order under s.318 of the Fair Work Act 2009 (the Act) which relates to an instrument covering a new employer and transferring employees in the context of a transfer of business.
[2] The application relates to the Applicant’s intention that the Australian Crusher Repairs Pty Ltd Enterprise Agreement 2016 [AE422307] (the Agreement), which was approved by the Commission (AG2016/5717) on 23 November 2016 [2016] FWCA 8368, should apply to the employees of ACR Maintenance Pty Ltd. The nominal expiry date of the Agreement is 23 November 2020
[3] The Applicant is an associated corporate entity of Australian Crusher Repairs Pty Ltd. The order sought is that the Agreement will also apply to employees of the Applicant.
The Relevant Legislation
[4] Sections s.317 and 318 relevantly provide:
“317 FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
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.”
Why the s.318 Order should be made
[5] The application is signed by Mr Antonio Peter Salvia, who is a Director of the Applicant. Attached to the application was a statutory declaration by Mr Greg Cross, also a Director of the Applicant.
[6] In deciding whether to make the order pursuant to s.318, the Commission must take into account all of the matters set out in s.318(3) above.
[7] In his statutory declaration, Mr Cross addressed the requirements of s.318(3) as follows:
● Australian Crusher Repairs Pty Ltd is the current employer.
● ACR Maintenance Pty Ltd is the future employer.
● There will be 2 employees transferring from the current employer, Australian Crusher Repairs Pty Ltd to the future employer ACR Maintenance Pty Ltd.
● Both employees have been consulted and have agreed to the transfer of employment.
● The new employer ACR Maintenance Pty Ltd has common Directors and ownership and is linked indirectly through a unit Trust.
● No employee will be disadvantaged in relation to the terms and conditions.
● There will be no impact on the workplace by the transferable instrument.
● There will be no economic disadvantage to the new employer.
● There is strong business synergy between the transferable instrument and the existing Agreement.
Conclusion
[8] I am satisfied that an order pursuant to s.318 should be made. The Order [PR589733] will operate from 9 February 2017.
DEPUTY PRESIDENT
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