Application by West Australian Newspapers Limited

[2022] FWC 2644

[2022] FWC 2644

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 West Australian Newspapers Limited

(AG2022/3593)

DEPUTY PRESIDENT BINET PERTH, 3 OCTOBER 2022

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

1. West Australian Newspapers Limited (WAN) has made an Application (Application) for an order pursuant to section 318 of the Fair Work Act 2009 (Cth) (FW Act).  The Application seeks an order that the Seven West Media (WA) Editorial Enterprise Agreement 2019 (SWM Agreement) and not the Westroyal Pty Ltd Employee Agreement 2008 (Agreement) will cover Ms Penelope Thomas (Ms Thomas) and WAN during her employment with WAN (Orders).

1. The Agreement was made under Part 8, Division 2 of the Workplace Relations Act 1996 (Cth) (WR Act) and has a nominal expiry date of 5 years after it’s commencement in 2013.  The parties to the Agreement are Westroyal Pty Ltd trading as West Australian Publishers (Westroyal) and employees who are employed by Westroyal.

1. On 12 March 2018, Ms Thomas commenced employment with Westroyal within its Creative Services Team as a journalist. On 20 July 2021, Ms Thomas began working as a journalist within WAN’s editorial department. Notwithstanding this change, Ms Thomas continued to be employed by Westroyal. In June 2022, Ms Thomas accepted permanent employment with WAN as a journalist and the transfer of her employment took effect on 29 June 2022.

1. Pursuant to section 313 of the FW Act, the Agreement will cover WAN and Ms Thomas if Westroyal and WAN are related entities and if within three months of the termination of her employment with Westroyal, Ms Thomas is employed by WAN to perform work which is the same or substantially the same as the work Ms Thomas performed for Westroyal.

1. WAN asserts that it and Westroyal are associated entities within the meaning given by section 50AAA of the Corporations Act 2001 (Cth) and that the work it is proposed that Ms Thomas perform for WAN is substantially the same as the work she performed for Westroyal.

1. The Application was supported by a statutory declaration made by Ms Thomas.

1. Section 318(3) sets out the matters which the FWC must take into account when deciding to make the order sought by WAN 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.”

1. WAN has standing pursuant to section 318(2) of the FW Act to make the Application in its capacity as the new employer of Ms Thomas.

1. WAN have made the Application to promote productivity in WAN’s business; provide terms and conditions of employment which are not inconsistent with the guaranteed safety nets; and reduce inefficiency within WAN’s enterprise by removing the burden associated with administering two industrial instruments for a single workforce whose participants are performing substantially similar roles.

1. The Application explains that on or around 10 June 2022, WAN contacted Ms Thomas to discuss the opportunity for her employment to be transferred to WAN. During that discussion, it was explained to Ms Thomas that, if the Commission makes the Orders sought, the terms and conditions of her employment will be governed by her contract of employment and the SWM Agreement. On 17 June 2022, WAN provided Ms Thomas with copies of the Agreement and the SWM Agreement. Ms Thomas was asked to review the agreements and reach out if she had any questions or concerns regarding WAN’s proposal to transition coverage of her employment from the Westroyal Agreement to the SWM Editorial Agreement.

1. Ms Thomas has filed a statutory declaration confirming that she supports the Application indicating that she believes that she will benefit from the Orders being made.

1. In the Application WAN identified the following disadvantages to Ms Thomas of the Orders being made:

a.an increase in her ordinary hours of work from 37.5 hours per week 38 hours per week; and

b.no longer be eligible to participate in any relevant discretionary bonus scheme in accordance with clause 11 of the Agreement.

1. However, WAN also identified which outweigh these disadvantages.

1. The nominal expiry date of the Agreement is in 2013 and there are no plans to negotiate a replacement Agreement.

1. WAN say that there is no business synergy between the agreements and that if the Orders are not granted it will create significant administrative difficulties for WAN and would be operationally inefficient.

1. WAN identified a number of grounds as to why the Orders would be in the public interest including that:

a.Ms Thomas consents to the Orders being made.

b.The SWM Agreement was more recently registered and contains superior terms and conditions of employment.

c.The Orders sought are consistent with the objects of the FW Act because they will promote productivity within WAN’s business, provide for terms not inconsistent with safety nets and reduce inefficiencies.

d.The transfer of employment will provide Ms Thomas with improved career opportunities.

1. There is nothing to suggest that the Orders would be contrary to the public interest.

1. In light of the above, I am satisfied that it is appropriate to make the order sought by WAN. An order to this effect will be issued with this decision.[1]

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC319602, PR746394>

[1] PR746395

Printed by authority of the Commonwealth Government Printer

<AC319602, PR746394>