Application by Eastern Australia Airlines Pty Limited & Hayward

[2016] FWC 403

[2016] FWC 403

DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and

transferring employees

Mr Joshua Hayward and Eastern Australia Airlines Pty Limited

(AG2016/54)

Airline operations

COMMISSIONER CAMBRIDGE SYDNEY, 27 JANUARY 2016

Application for an Order relating to instruments covering new employer and transferring

employees.

[1] This matter involves an application made under section 318 of the Fair Work Act 2009

(the Act). The application has been made by Mr Joshua Hayward and Eastern Australia

Airlines Pty Limited (Eastern). Joshua Hayward is an employee of Qantas Airways Limited

(Qantas).

[2]        The application was lodged at Sydney on 14 January 2016. The application seeks an

Order from the Fair Work Commission (the Commission) relating to Joshua Hayward who is

an employee of Qantas and a prospective employee of Eastern.

[3]        The application contains grounds and submissions which, in relevant summary,

contend that:

 Joshua Hayward is currently employed by Qantas under the terms of the Qantas

Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 (the Qantas

Agreement);

 Joshua Hayward has been offered and he has accepted employment with Eastern;

 The employment of a person performing the work that Joshua Hayward will perform

with Eastern is not regulated by an industrial instrument;

 There is an association between Qantas and Eastern and a transfer of business from

Qantas to Eastern in satisfaction of the meaning of transfer of business contained in

Division 2 of Part 2-8 of the Act, will occur when Joshua Hayward commences

employment with Eastern as is anticipated;

[2016] FWC 403

 The terms and conditions of employment for Joshua Hayward with Eastern are

considered to be, over time, more beneficial overall for Joshua Hayward than the

terms applicable under the Qantas Agreement; and

 In the absence of the Order sought by the application, the Qantas Agreement would

be likely to cover Joshua Hayward as a transferring employee and bind Eastern as a

new employer.

[4]        The matter was listed for a Hearing in Chambers on 27 January 2016. In the absence

of any objection to the application, I have proceeded to determine the matter by reference to

and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act.

Section 318 is in the following terms:

“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

[2016] FWC 403

(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.”

[6]        The Commission has reviewed the application documentation and the accompanying

materials. These documents outline the factual circumstances which have given rise to the

application. Further, the submissions contained in the application address the relevant

legislative requirements which are asserted to provide for proper basis for the making of the

Orders sought.
[2016] FWC 403

[7]        Having examined and considered the application and its accompanying materials, I

have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the

Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the

application is granted and Orders [PR576293] broadly in accordance with the terms sought

will be issued accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE402684 PR576292 >