Aero Care Flight Support Pty Ltd

[2015] FWC 2903

[2015] FWC 2903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Aero Care Flight Support Pty Ltd
(AG2015/847)

Airport operations
COMMISSIONER SIMPSON	BRISBANE, 5 MAY 2015

Application for an order relating to instruments covering new employer and transferring employees.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Aero Care Flight Support Pty Ltd (the Applicant) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument. The Applicant was represented by Carter Newell Lawyers.

[2] The Application has been made in the context of a transfer of business between the Applicant and Broome Airport Services Pty Ltd (BAS). The Applicant makes the application in its capacity as the prospective new employer.

The Applicant submits that it intends to make offers of employment to BAS employees.

[3] The Applicant seeks the following orders:

1. Pursuant to section 318(1)(a) of the Act, the BIA Group Enterprise Agreement 2010 will not coverthe new employer and any transferring employees.

2. Pursuant to s318(1)(b) of the Act, the Aero-Care Collective Agreement 2012 [AG2012/12949] will cover any transferring Employees.

3. That the BIA Agreement will not cover any transferring employees during the period of their employment with Aero-Care Flight Support Pty Ltd.

[4] Mr Gregory Shelley, General Manager for the Applicant provided the Commission with a signed written statement addressing each of the criteria set out in s318.

[5] The Applicant submitted Statements from employees indicating their support of the application.

[6] I have read the Statements and Submissions filed in support of the application.

[7] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission:

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.

[8] The Commission, as presently constituted, is satisfied it is appropriate to deal with the application on the papers.

[9] Having considered the views of the new employer and the new employees, the Commission is satisfied that the requirements of s.318 of the Act have been met. An order will issue with this decision.

COMMISSIONER

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