ActewAGL Distribution
[2010] FWA 2043
•11 MARCH 2010
[2010] FWA 2043 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in awards
(AG2010/6149)
COMMISSIONER DEEGAN | CANBERRA, 11 MARCH 2010 |
Orders relating to instruments covering new employer and transferring employees.
[1] The matter arises from an application filed on 23 February 2010 under s.318 of the Fair Work Act 2009 (“the Act”) by ActewAGL Distribution (“the new employer”) for an order that the Ecowise Australia Pty Ltd (“Ecowise”) Union Collective Agreement 2009 and Ecowise Environmental (Victoria) Pty Ltd Award 1998 (“the transferable instruments”) not cover ActewAGL Distribution or any employees of ActewAGL Distribution formerly engaged by Ecowise (“the relevant employees”).
[2] The matter was listed for hearing 11 March 2010.
[3] The background to this application is as follows:
- On 9 August 2009, 19 employees employed in a part of the business of Ecowise known as the Geographic Information Service (“GIS”) were transferred to ActewAGL when ActewAGL insourced their services.
- During the employee consultation process that preceded the transfer of business, undertakings were given to the transferring employees by ActewAGL to the effect that ActewAGL would apply for an order from Fair Work Australia to bring the employees of GIS under the coverage of ActewAGL Agreement within 1 year of the date of transfer of business.
[4] At the hearing, ActewAGL was represented by Ms D. Georgiades, Mr M. Campbell and Mr A. White. A representative of the transferred employees, Mr A. Whiting also appeared. Mr I. Morrison appeared for the Australian Manufacturing Workers’ Union and, with authority, also represented the Association of Professional Engineers, Scientists and Managers, Australia and the Australian Services’ Union.
The Legislation
[5] Section 318(1) of the Act relevantly provides:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.”
Consideration
[6] The grounds for the application were set out in the application. Each matter that Fair Work Australia (FWA) must take into account when deciding whether to make an order under s.318 was addressed and statutory declarations provided. Further information in relation to those matters was also provided at the hearing.
[7] The representative for the unions did not object to the order sought being made and put on record the unions’ appreciation for the constructive manner in which the transfer of the employees to ActewAGL was negotiated by the new employer.
[8] On the basis of the information provided both in and with the application and at the hearing I have reached a number of conclusions in relation to the application.
[9] It is clearly the new employer’s position that it should not be covered by the transferable instrument. Additionally all relevant employees have indicated a preference to be covered by the enterprise agreement covering ActewAGL employees (ActewAGL and Combined Unions Enterprise Agreement 2005).
[10] Given the relative terms of the transferable instrument and the ActewAGL enterprise agreement and the additional information provided by the likely new employer I am satisfied that no relevant employee would be disadvantaged in relation to their terms and conditions of employment if the order were granted in the terms sought.
[11] There is no reason to doubt the new employer’s assertions that the application of the same agreement to all employees working for ActewAGL will contribute to productivity in the workplace or that there will be no significant economic disadvantage to the new employer if the order is granted.
[12] I am satisfied that the matter of business synergy between the transferable instrument and the ActewAGL enterprise agreement should have little bearing on this decision. The transferring employees have been readily integrated into the ActewAGL structure.
[13] I am unable to discern any public interest in refusing the order and the employer claims that the public interest will be served by the promotion of industrial harmony in a major utilities provider which will occur if the order is granted.
Decision
[14] Having taken into account all those matters set out in s.318 of the Act I have decided to make an order that the transferable instrument will not apply to the new employer or any relevant employees engaged by the new employer.
Orders
[15] An Order [PR994923] giving effect to this decision is published separately.
COMMISSIONER
Hearing details:
11 March 2010
Canberra
Printed by authority of the Commonwealth Government Printer
<Price code A, PR994922>
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