Application by Antony Dews

[2018] FWC 6529

[2018] FWC 6529

FAIR WORK COMMISSION

DECISION

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

Application by Antony Dews
(AG2018/4852)

Fast food industry
DEPUTY PRESIDENT BINET	PERTH, 24 OCTOBER 2018

Application for an order relating to instruments covering new employer and transferring employee – application refused.

[1] Mr Antony Dews (Mr Dews) has made an application (Application) for an order pursuant to section 318(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) that the Chicken Treat Employees SDA Agreement (Publication ID AE875152) (Agreement) will not cover employees currently employed by Claxy Pty Ltd (Claxy) who accept an offer of employment from Dewswood Pty Ltd (Dewswood) to perform the same or substantially the same work as the work they currently perform for Claxy.

[2] The Agreement is made pursuant to section 185 of the FW Act and has a nominal expiry date of 30 September 2013. The parties to the Agreement are the employers set out in Schedule A of the Agreement trading as Chicken Treat in Western Australia and the employees of Chicken Treat in Western Australia engaged in the classifications set out in clause 6 of the Agreement. Claxy is one of the employers named in Schedule A of the Agreement. The Agreement covers the Shop, Distributors and Allied Employees’ Association (SDA).

[3] According to Mr Dews, Dewswood has entered into a Sale and Purchase Agreement with Claxy for the purchase of the business of Chicken Treat Australind. This transaction is due to be completed on 10 September 2018. Mr Dews asserts this transaction will result in a transfer of business for the purposes of section 311 of the FW Act.

[4] According to Mr Dews, Dewswood intends to offer all employees currently employed by Claxy (Transferring Employees) employment with Dewswood on the terms and conditions set out in the Fast Food Industry Award 2010 (Award). If a transmission of business has occurred for the purposes of section 311 of the FW Act, and the work the Transferring Employees will perform for Dewswood is the same, or substantially the same, as the work they currently perform for Claxy, then by virtue of section 313 of the FW Act, the Agreement will cover Dewswood and the Transferring Employees.

[5] New non-transferring employees who will be performing the same or substantially the same work as the Transferring Employees will by virtue of section 314 of the FW Act be covered by the Award provided that no other enterprise agreement or modern award covers Dewswood and the non-transferring employees in relation to that work.

[6] To ensure consistency in terms and conditions of employment for Transferring Employees and new non-transferring employees performing the same or substantially the same work, Dewswood seeks an order from the FWC that the Agreement not cover Dewswood and the Transferring Employees.

[7] Section 318(3) sets out the matters which the FWC must take into account when deciding to make the order sought by Dewswood as follows:

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

…

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.”

[8] In order to determine the Application, directions were issued to Dewswood on 5 September 2018 (Directions).

[9] Interalia, the Directions directed Dewswood to:

a. File in the FWC by close of business, Thursday 13 September 2018 evidence that the Application has been served in accordance with Rule 41 and Schedule 1 of the Fair Work Commission Rules 2013 (Cth) on all parties to the Agreement and any employee organisation which normally represents the industrial interests of the Transferring Employees.

b. File in the FWC and serve on Transferring Employees and any employee organisation which ordinarily represents the industrial interests of the Transferring Employees by close of business, Thursday 13 September 2018:

•  an outline of submissions as to why the Order should be made which addresses the requirements of section 318(3) of the FW Act and Mr Dews’ standing to make the Application;

•  any evidence on which Dewswood seeks to rely upon in support of the Application including but not limited to:

•  how many Transferring Employees are currently employed by Claxy and how many have been offered employment by Dewswood;

•  the views of employees affected by the Order;

•  whether any employees will be disadvantaged by the Order including, but not limited to, evidence as to whether employees will be better off overall under the Award or the Agreement (including a comparison of key terms of the Award and the Agreement) and how many, if any, employees may be disadvantaged.

c. Provide a copy of the Application, the Agreement and these Directions to all Transferring Employees and any employee organisation which ordinarily represents the industrial interests of the Transferring Employees by close of business, on Thursday 13 September 2018.

d. Lodge with the FWC a statutory declaration confirming that specified paragraphs of the Directions have been complied with by close of business, on Friday 14 September 2018.

[10] The Directions noted that compliance with the Directions was mandatory and a failure to do so may disadvantage the party concerned.

[11] Dewswood failed to comply with the Directions in accordance with the timetable set out in the Directions.

[12] On 19 September 2018, Dewswood were granted an extension to comply with the Directions and advised that if they failed to comply with the Directions within this period that the Application would be considered based on the materials filed to date.

[13] No materials have been filed with the FWC in accordance with the Directions as at the date of this Decision and the FWC has received no correspondence from Dewswood since the Application was filed.

[14] Based on the information contained in the Application I am not satisfied that it is appropriate to make the order sought by Dewswood.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701666>