Amcor Flexibles (Australia) Pty Ltd

[2013] FWC 10082

[2013] FWC 10082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

Amcor Flexibles (Australia) Pty Ltd
(AG2013/10135)

(AG2013/10136)

(AG2013/10137)

(AG2013/10138)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 DECEMBER 2013

Application for an order re instruments covering new employer and non-transferring employees in agreements.

Introduction

[1] On 12 December 2013 I made orders 1 that the Amcor Flexibles Asia-Pacific Acacia Ridge Enterprise Agreement 2011 – 2014, the Amcor Flexibles Australasia (Preston) Workplace Agreement 2010, the Amcor Flexibles Australasia – Moorabbin Enterprise Agreement 2010 – 2013 and the Amcor Flexibles Australasia – Moorabbin Maintenance Enterprise Agreement 2011-2014 (collectively “transferable instruments”) will cover non-transferring Amcor Flexibles (Australia) Pty Ltd (Amcor) employees who perform, or are likely to perform transferring work as a consequence of a transfer business from Orora Limited (Orora). The orders that I made commence operation on the date that a non-transferring employee of Amcor starts to perform the transferring work for Amcor. These are my reasons for doing so.

Background

[2] The following matters are not in dispute. Orora and Amcor are associated entity within the meaning of the Fair Work Act 2009 (Act) and s 50AAA the Corporations Act 2001. A transfer of business from Orora to Amcor within the meaning of s 311 occurred on 1 December 2013. The work performed by transferring employees for Amcor is the same as the work that transferring employees performed for Orora. As a consequence the transferable instruments which covered Orora and each transferring employee, now cover Amcor and each transferring employee in relation to the transferring work. Amcor wishes, and is likely, to engage new employees to also perform the transferring work.

[3] The transferable instruments will not cover a non-transferring employee of Amcor in relation to the transferring work by reason of s 314 because the non-transferring employees would be covered by either the Graphic Arts Printing and Publishing Award 2010 or the Manufacturing Industry and Associated Occupations Award 2010. On 19 November 2013 Amcor applied for orders under s 319 in respect of the coverage of non-transferring employee by the transferable instruments.

[4] Amcor has standing to make the application because it is the new employer 2.

Consideration

[5] The discretion to make the orders sought by Amcor will only be exercised after taking into account the matters enumerated in s319 (3).

[6] The views of Amcor are clear. It supports the making of the order and says that absent the making of such an order there will be a significant negative impact on the flexibility of operations at each of the sites that are covered by the respective transferable instruments. At the time of dealing with this application Amcor had not employed any non-transferring employees, but it was likely to do so. I am satisfied based on the submissions filed by Amcor and supported by the AMWU and CEPU (collectively “the Unions”), the registered organisations representing many of the transferring employees and having rights of industrial representation at the Amcor sites, that the absence of actual employment by Amcor of any non-transferring employee is not a bar to the making of the orders sought.

[7] As there are currently no non transferring employees employed by Amcor it is not possible to ascertain their views in relation to the application. However, the Unions that are entitled to represent the industrial interests of both transferring and any non-transferring employees who will perform the transferring work support Amcor’s applications.

[8] I am satisfied that non-transferring employees would not be disadvantaged in relation to their terms and conditions of employment because absent the orders sought, such employees would be covered by the relevant modern award applicable to the transferring work performed by them. Each of the transferable instruments provides for terms and conditions of employment superior to the relevant applicable modern award. Furthermore, the transferable instruments have either recently passed their nominal expiry dates or will do so by no later than 14 July 2014. In the circumstances non-transferring employees will be able, immediately or in the near future, to participate in bargaining for a new enterprise agreement.

[9] It is not suggested by either Amcor or the Unions that the coverage by the transferable instruments of non-transferring employees would have a negative impact on the productivity of Amcor’s various workplaces at which the agreements operate. Nor was it suggested that Amcor would incur and significant economic disadvantage as a result of the transferable instruments covering the new employer and the non-transferring employees. As to the question of business synergy, I accept that if non-transferring employees are not covered by the transferable instruments that this would have a negative impact on the flexibility of Amcor’s various workplaces covered by the transferring instruments and that business synergy would be enhanced by the making of the orders sought. I am also satisfied that it is not contrary to the public interest to make the orders that Amcor seeks.

Conclusion

[10] Orders giving effect to this decision have previously been issued and will commence operation on the date that a non-transferring employee of Amcor starts to perform the transferring work for Amcor.

DEPUTY PRESIDENT

 1   PR545668, PO545672, PR545670 and PR545669

 2   See s 319(2)(a)

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