Application by Unitrans Asia Pacific Pty Ltd

[2018] FWC 7671

[2018] FWC 7671

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 Unitrans Asia Pacific Pty Ltd

(AG2018/6929)

Deputy President Sams SYDNEY, 21 DECEMBER 2018

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’) filed by Unitrans Asia Pacific Pty Ltd (the ‘applicant’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the Plush Think Sofas Enterprise Agreement 2014 will not apply to Vincent Gerard Bain and Matthew Christopher Kinge if they transfer from Plush-Think Sofas Pty Ltd (the ‘old employer’) to the applicant. Both companies are associated entities for the purpose of s 311(6) of the Act, within the meaning of s 50AAA of the Corporations Act 2001.

1. Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

‘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.’

1. In the applicant’s Form F40 – Application for Orders in Relation to Transfer of Business, Mr Michael Cooper (General Counsel – Regulatory and Compliance of Greenlit Brands Pty Limited, the parent entity of the applicant) explained the background of the application. In brief, Mr Bain and Mr Kinge were issued an offer (subject to the Commission making the orders sought in this application) for employment with the applicant. Mr Bain and Mr Kinge will perform work in their new employment that is substantially the same as that currently performed with the old employer. The Unitrans Enterprise Agreement 2016-2019 would cover Mr Bain and Mr Kinge in their employment with the applicant. The application also states that Mr Bain and Mr Kinge will not be disadvantaged if the Commission grants the order, as the terms and conditions in the applicant’s enterprise agreement will be more beneficial, notably in terms of remuneration.

1. Mr Bain and Mr Kinge support the application for an order that the Plush-Think Sofas Enterprise Agreement 2014 will not cover them in their employment with the applicant. So much so is evident from their signed statutory declarations attached to the application, in which Mr Bain and Mr Kinge state that the applicant explained that the terms and conditions of the Plush-Think Sofas Enterprise Agreement 2014 would not cover them in their employment with the applicant. Mr Bain and Mr Kinge both declare that having considered the differences between the two agreements, they accept the applicant’s application for the Commission to grant the order sought. Given the statutory declarations were signed and witnessed, I did not think it necessary to write to Mr Bain and Mr Kinge to confirm their views.

1. Having reviewed the filed documentation and considered the submissions of the applicant, I am satisfied that the requirements of s 318 of the Act have been met. Specifically, I have taken into account all of the matters in s 318(3) in arriving at my decision; noting, in particular, that Mr Bain and Mr Kinge do not oppose the application and will have more favourable terms and conditions of employment when engaged by the applicant. Accordingly, I propose to issue the order sought by the applicant. An order to that effect will accompany the publication of this decision. Pursuant to s 318(4), the order shall take effect from today.

DEPUTY PRESIDENT

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