Asahi Beverages Pty Ltd T/A Asahi Beverages

[2017] FWC 5845

[2017] FWC 5845

FAIR WORK COMMISSION

DECISION

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

Asahi Beverages Pty Ltd T/A Asahi Beverages
(AG2017/5059)

DEPUTY PRESIDENT DEAN SYDNEY, 9 NOVEMBER 2017

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

[1] Asahi Beverages Pty Ltd (ABPL) has made an application pursuant to s.319(1)(b) of the Fair Work Act 2009 (the Act) for an order relating to an instrument covering a new employer and non-transferring employees following a transfer of business.

Background

[2] ABPL and Mountain H2O Pty Ltd (Mountain H2O) are associated entities. A transfer of business, within the meaning of s.311(1) of the Act, occurred on 22 October 2017 when all employees of Mountain H2O were transferred to ABPL. As a result, the Mountain H2O Albury Enterprise Agreement 2015 (the Agreement), an enterprise agreement approved by the Commission which covered Mountain H2O and its former employees employed in the classifications contained in the Agreement, became a transferable instrument by virtue of s.312(1)(a) of the Act. In accordance with s.313(1) of the Act, the Agreement covers ABPL (new employer) and its transferring employees in relation to the transferring work.

[3] ABPL seeks an order under s.319(1)(b) of the Act that the Agreement covers, or will cover, its non-transferring employees who perform, or are likely to perform the transferring work.

[4] ABPL does not currently have any non-transferring employees. Absent the order sought in the application, future non-transferring employees of ABPL would be covered by the Food, Beverage and Tobacco Manufacturing Award 2010 (the Award).

Relevant Legislation

[5] Section 314 of the Act provides:

314 New non-transferring employees of new employer may be covered by transferable instrument

(1) If:

(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and

(b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and

(c) the non-transferring employee performs the transferring work; and

(d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;

then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.

(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

(3) This section has effect subject to any FWC order under subsection 319(1).

[6] Section 319(1) of the Act sets out the provisions for orders that the Commission may make in relation to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

[7] Section 319(3) of the Act further sets out the matters that the Commission must take into account in deciding whether to make an order:

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.”

Submissions

[8] The application is supported by a statutory declaration of Ms K Pinsent, a National Employee Relations Consultant for ABPL. Ms Pinsent has addressed each of the provisions under s.319(3) of the Act which I am required to consider.

Views of the new employer and affected employees - s.319(3)(a)

[9] ABPL seeks to create a ‘one team’ approach and coverage of the Agreement means that ABPL would avoid a situation at its Albury site where employees doing the same work are covered by different terms and conditions. Consistency of terms and conditions will also streamline ABPL’s administrative and payroll processes.

[10] ABPL has not yet employed any non-transferring employees and therefore the views of employees required by s.311(a)(ii) of the Act cannot be considered.

Whether any employees would be disadvantaged by the order - s.319(3)(b)

[11] ABPL submits that no employees will be disadvantaged if the order sought is granted. New non-transferring employees will be better off overall being covered by the Agreement than the modern award.

Expiry date of the agreement - s.319(3)(c)

[12] The Agreement was approved by the Commission on 15 June 2015 and has passed its nominal expiry on 30 May 2017.

[13] ABPL is currently bargaining for a new enterprise agreement and that the National Union of Workers (NUW), being a bargaining representative, has been included in the negotiations. The new enterprise agreement is expected to be voted on by employees between 14 and 17 November 2017.

Productivity - s.319(3)(d)

[14] ABPL submits that the transferrable instrument extending to non-transferring employees would have a positive impact on the productivity of the workplace. The Agreement has been operating in ABPL’s Albury facility since it commenced operations on 23 June 2015. It contains provisions designed to address the facility’s particular circumstances, including with respect to hours of work and rostering arrangements aligned with the facility’s operations.

Economic disadvantage - s.319(3)(e)

[15] ABPL says that it will not incur significant economic disadvantage as a result of the Agreement covering non-transferring employees.

Degree of business synergy - s.319(3)(f)

[16] ABPL submits that having the Agreement cover non-transferring new employees will increase business synergy for ABPL. It will streamline administrative operations associated with the employees in the classifications covered by the Agreement and employees working side by side in the same roles will have the same terms and conditions of employment.

Public interest - s.319(3)(g)

[17] ABPL asserts that it is in the public interest to grant the order sought. It will maximise industrial harmony between the employees in the classifications in the Agreement and contribute a fairer and more cooperative industrial relations at its Albury site.

Consideration

[18] I have considered the material provided by the Applicant and agree with the matters put in support of the order sought.

[19] The NUW, being an employee organisation covered by the Agreement, was advised of the application and did not raise any objection.

[20] Taking into account each of the matters set out in s.319(3) of the Act, I am satisfied that the order should be made. An order will be issued with this decision.

DEPUTY PRESIDENT

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