Application by Commercial Pipe Installation Pty Ltd

[2021] FWC 6075

[2021] FWC 6075

FAIR WORK COMMISSION

DECISION

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

Application by Commercial Pipe Installation Pty Ltd
(AG2021/6895)

DEPUTY PRESIDENT BINET PERTH, 3 NOVEMBER 2021

s.319 Application for an order relating to instruments covering new employer and non-transferring employees – Application granted

[1] Commercial Pipe Installation Pty Ltd (Commercial Pipe Installation) has made an application (Application) for an order pursuant to section 319(1)(b) of the Fair Work Act 2009 (FW Act) that the transferable instrument named Commercial Pipe Installation Mechanical Plumbing Company Agreement 2019 (Agreement) cover new non-transferring employees who perform, or are likely to perform, mechanical plumbing work performed by transferring employees covered by the Agreement (Non-Transferring Employees).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 16 January 2024.

[3] The parties to the Agreement are Blueprint Nominees Pty Ltd as Trustee for the Presti Family Trust trading as Commercial Pipe (Blue Print Nominees) and employees of Blue Print Nominees engaged in the plumbing industry executing plumbing, gas fitting, pipe fitting or domestic engineering work of the nature set out in Clause 2 of the Agreement (Transferring Employees).

[4] There are no employee organisations covered by the Agreement.

[5] On 1 July 2021, Blue Print Nominees changed from a Trading Trust (ABN 66 951 897 185) to an Australian Private Company (ABN 31 634 745 092) called Commercial Pipe Installation Pty Ltd. Commercial Pipe Installation asserts this transaction will result in a transfer of business for the purposes of section 311 of the FW Act.

[6] 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 Commercial Pipe Installation is the same, or substantially the same, as the work they currently perform for Blue Print Nominees, then by virtue of section 313 of the FW Act, the Agreement will cover Commercial Pipe Installation and the Transferring Employees.

[7] If the Fair Work Commission (FWC) declines to grant the order sought Non-Transferring Employees of Commercial Pipe Installation performing the same or substantially the same work as the Transferring Employees will by virtue of s 314 be covered by the Plumbing & Fire Sprinklers Award.

[8] To ensure consistency in terms and conditions of employment for Transferring Employees and Non-Transferring Employees performing the same or substantially the same work, Commercial Pipe Installation seeks an order from the FWC that the Agreement covers Non-Transferring Employees (Proposed Order).

[9] On 7 September 2021, directions were issued with respect to the Application (Directions). The Directions required Commercial Pipe Installation to file an outline of submissions in support of the Application and any evidence on which they relied.

[10] The Directions also required Commercial Pipe Installation to provide a copy of the Application, the Agreement, the materials filed in accordance with paragraph [8] of the Directions and a copy of the Directions to each Non Transferring Employee and the employee organisation that would ordinarily represented the industrial interests of the Non Transferring Employees, the Plumbing and Pipes Trades Employees Union (PTEU).

[11] The Directions contained an invitation for any Non Transferring Employee who wished to be heard in relation to the Application to contact Chambers by 4pm, Thursday 23 September 2021.

[12] In accordance with the Directions Commercial Pipe Installation filed the following with FWC:

a. An outline of submissions as to why the Application should be granted addressing section 319(3) of the FW Act.

b. Confirmation that Commercial Pipe Installation does not currently employ any Transferring Employees.

c. A statutory declaration by Ms Lara-Jane Clarke of Commercial Pipe Installation confirming that the Directions had been complied with and that a copy of the Application, the Agreement, the materials filed in accordance with paragraph [8] of the Directions and the Directions had been served on the PTEU.

[13] Neither the PTEU or any Non Transferring Employees contacted Chambers by 4pm Thursday 23 September 2021 or by the date of this decision.

Relevant legislation

[14] Section 319(2) provides that inter alia a new employer or person who is likely to be a new employer may make an application for an order pursuant to section 319(1)(b) of the FW Act.

[15] Section 319(3) of the FW Act sets out matters that the FWC must take into account in deciding whether to make an order pursuant to section 319(1)(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.”

Consideration

[16] I am satisfied that:

a. a ‘transfer of business’ has occurred as defined by section 311 of the FW Act;

b. the Agreement is a ‘transferable instrument’ as defined by section 312 of the FW Act; and

c. Commercial Pipe Installation is a ‘new employer’ for the purposes of section 319(2) of the FW Act.

[17] I therefore find that Commercial Pipe Installation has standing to make the Application pursuant to section 319(2)(a) of the FW Act.

[18] The view of the new employer Commercial Pipe Installation is that the Application should be granted.

[19] The views of the Non-Transferring employees affected by the Application are not known as no such employees have been engaged yet. I note that no objection to the Application was received from PTEU.

[20] The outline of submissions had annexed to it a table comparing the terms of the Award and the Agreement. It appears from that table that Non-Transferring Employees will not on an overall basis be disadvantaged if the Application is granted.

[21] In fact if the Application is not granted Non Transferring Employees would not obtain the benefit of high base rates of pay and other benefits contained in the Agreement which are superior to those contained in the Award.

[22] There is therefore no evidence that the employees affected would be disadvantaged by the order in relation to their terms and conditions of employment.

[23] The nominal expiry date of the Agreement, namely 16 January 2024, is a neutral factor.

[24] Commercial Pipe Installation submit that by ensuring consistency in terms and conditions of employment between Transferring Employees and Non-Transferring Employees performing the same or substantially the same work, granting the Application is likely to have a positive impact on workplace productivity.

[25] Commercial Pipe Installation say that it will not incur significant economic disadvantage if the Application is granted.

[26] There is minimum business synergy between the Agreement and the relevant Award because of the differing terms and conditions.

[27] There is nothing to suggest that the order sought is contrary to the public interest.

[28] In light of the above, it is appropriate to make the order sought by Commercial Pipe Installation. An order 1 to this effect will be issued with this decision.

DEPUTY PRESIDENT

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