Australian Capital Territory as represented by Transport Canberra & City Services
[2024] FWC 931
•19 APRIL 2024
| [2024] FWC 931 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Australian Capital Territory as represented by Transport Canberra & City Services
(AG2024/1010)
| DEPUTY PRESIDENT DEAN | CANBERRA, 19 APRIL 2024 |
Application for orders relating to instruments covering new employer and transferring employees.
Australian Capital Territory as represented by Transport Canberra & City Services (Applicant) has applied for orders pursuant to s.318 of the Fair Work Act 2009 (the Act) relating to instruments covering a new employer and transferring employees. The application arises from the Applicant’s decision to cease outsourcing the operational management of its weighbridge facilities currently operated by Community Resources Limited T/A Resource Recovery Australia (Community Resources Limited).
Community Resources Limited presently has about 15 employees performing duties at the Applicant’s four weighbridge facilities, three located in Symonston, ACT and one in Mitchell, ACT. Apart from one Weighbridge Operations Manager who is award-free, the other employees are engaged under the terms of the Resources Recovery Australia Enterprise Agreement 2023 (the RRA Agreement). Through the operation of clause 4.1, the Waste Management Award 2020 (Award) is incorporated into the RRA Agreement.
The Applicant intends to insource the services to ACT NoWaste (a branch of the Applicant) by 1 May 2024 and all employees transferred from Community Resources Limited will be offered full time employment with the Applicant.
It is the Applicant’s position that there is a transfer of business within the meaning of s.311(1) of the Act when the insourcing process is complete and, by virtue of s.313, the RRA Agreement and the Award will be the transferable instruments that cover the Applicant (new employer) and employees transferred from Community Resources Limited (transferring employees).
The Applicant seeks orders to the effect that the transferable instruments, including any applicable instruments that applied to the transferring employees, will not cover the Applicant and the transferring employees. Instead, the Applicant intends for the ACT Public Sector Infrastructure Services Enterprise Agreement 2023 – 2026 to apply and cover each transferring employee other than the Weighbridge Operations Manager, to whom the ACTPS Administrative and Related Classifications Enterprise Agreement 2023 – 2026 will apply.
The orders sought by the Applicant are in the following terms:
“1. Pursuant to subsection 318(1)(a) of the Fair Work Act 2009 (Cth), the Resources Recovery Australia Enterprise Agreement 2023 and the Waste Management Award 2020 do not and will not cover the Australian Capital Territory as represented by Transport Canberra & City Services in respect of any employees transferring from employment with Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) who would otherwise be covered by the Resources Recovery Australia Enterprise Agreement 2023 and Waste Management Award 2020 in accordance with section 313 of the Fair Work Act 2009 (Cth).
2. Pursuant to subsection 318(1)(a) of the Fair Work Act 2009 (Cth), the Resources Recovery Australia Enterprise agreement 2023 and the Waste Management Award 2020 do not and will not cover any employee whose employment transfers from Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) to Australian Capital Territory as represented by Transport Canberra & City Services in accordance with section 311 of the Fair Work Act 2009 (Cth).
3. Pursuant to subsection 318(1)(b) of the Fair Work Act 2009 (Cth), any employee of Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) transferring to the Australian Capital Territory as represented by Transport Canberra & City Services in accordance with section 311 of the Act and who is covered or should be covered by the Resources Recovery Australia Enterprise Agreement 2023 and the Waste Management Award 2020 will instead be covered the ACT Public Sector Infrastructure Services Enterprise Agreement 2023 - 2026 which, at the time of this order, covers Transport Canberra and City Services.
4. Pursuant to subsection 318(1)(a) of the Fair Work Act 2009 (Cth), any other industrial instrument which covers any employee of Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) transferring to the Australian Capital Territory as represented by Transport Canberra & City Services in accordance with section 311 of the Act will not transfer across to Australian Capital Territory as represented by Transport Canberra & City Services.
5. Pursuant to subsection 318(1)(a) of the Fair Work Act 2009 (Cth), any other industrial instrument which covers any employee of Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) does not and will not cover any employee whose employment transfers from Community Resources Limited T/A Resource Recover Australia (ABN: 90 746 695 414) to Australian Capital Territory as represented by Transport Canberra & City Services in accordance with section 311 of the Fair Work Act 2009 (Cth).
6. Pursuant to subsection 318(1)(b) of the Fair Work Act 2009 (Cth), any employee of Community Resources Limited T/A Resource Recovery Australia (ABN: 90 746 695 414) transferring to the Australian Capital Territory as represented by Transport Canberra & City Services in accordance with section 311 of the Act and who is not covered by the Resources Recovery Australia Enterprise Agreement 2023 and the Waste Management Award 2020, will be covered under the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2023 - 2026, which, at the time of this order, covers the Australian Capital Territory as represented by Transport Canberra & City Services.
7.Subject to section 318(4) of the Fair Work Act 2009 (Cth), these orders will come into operation from either:
(a) the time when the transferring employee becomes employed by the new employer; or
(b) the day on which the orders are made,
whichever occurs later.”
Relevant Legislation
Section 318 of the Act relevantly provides:
“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.”
Consideration
I am satisfied that the Applicant, being the new employer, has standing to apply for the orders sought in the present application.
I now turn to consider the matters in s.318(3) which the Commission must take into account in determining whether to make the orders sought, having regard to the grounds and submissions advanced by the Applicant.
Views of the new employer and affected employees (s.318(3)(a))
The Applicant as the new employer supports the proposed orders. The Applicant submits that the orders, if made, will promote a single and harmonious workplace in the newly integrated ACT NoWaste and ensure any transferring employees enjoys the higher pay, terms and conditions of the ACTPS Infrastructure Enterprise Agreement. It will also streamline the bargaining process for the Applicant and allow transferring employees to bargain collectively with the rest of the Applicant’s employees if they are covered by the same instrument.
If the orders sought are not made, the Applicant submits that: “the transferable instruments relevant to this application would obstruct the integration of the transferring employees into the Applicant’s operations, increase administrative costs and workloads and create inequality in the conditions applicable to employees performing work at a similar classification level, not just in regards to pay but also in other matters such as the amount of superannuation pay and long service leave accrual.”
The Commission has issued Directions inviting all affected employees who wished to be heard on the application to contact my chambers. No response has been received from any affected employees in response to the Directions.
The Transport Workers’ Union of Australia and Community Resources Limited both wrote to the Commission to indicate their support for the making of the orders sought in this application.
Whether any employees would be disadvantaged by the order – s.318(3)(b)
The Applicant filed comparative analysis of the pay rates and conditions between the relevant instruments, which show that no transferring employee would be disadvantaged if the application is granted.
Expiry date of the agreements – s.318(3)(c)
The RRA Agreement has a nominal expiry date of 4 December 2026.
The Applicant submits that this factor weighs in favour of the orders being made, as the ACTPS Infrastructure Agreement will expire on 31 March 2026, “possibly resulting in the Applicant entering into two bargaining processes for employees who are otherwise working for the same organisation and performing similar work to one another at a similar level of skill.”
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.318(3)(d)
The Applicant submits that if the transferable instruments were to continue to cover the transferring employees, the application of differing terms and conditions of employment between these new employees and the Applicant’s existing employees would “have a negative adverse impact on workplace harmony and employee morale, which in turn could have a negative impact on employee productivity”.
The Applicant further highlighted that if the transferable instruments continue to apply, it would be more difficult in the long-term for the Applicant to retain these experienced staff where opportunities for similar skilled work at higher rates of pay under the ACTPS Infrastructure Agreement are in place in other business units of the Applicant. As a result, the Applicant would require to undertake the process of engaging and training new staff who may be unlikely to be able to work as productively as the experienced staff.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.318(3)(e)
If the orders are not made, the Applicant submits that the management of the additional transferable instruments would lead to increased administrative costs because of:
“(1) The need to train existing managerial, payroll and human resources staff in these new industrial instruments;
(2) The requirement to make configuration changes to relevant parts of the Territory’s IT systems that enable and support human resources matters such as thresholds for calculating penalties and overtime, leave balance calculations and eligibility requirements as to how leave is taken;
(3) Transferring employees needing to provide manual timesheets to payroll until such time as the transferring industrial instruments could be properly implemented into the ACT Public Sector’s human resources IT systems; and
(4) Having to apply, and obtain legal advice on, legislation such as the Long Service Leave Act 1976 (ACT) which would continue covering each of the relevant employees, instead of the new employees falling under the relevant long service leave provisions of the ACTPS Infrastructure EA and accompanying Public Sector Standards 2016 which includes a different model for calculating accrued long service leave, being calculated on two bases, being part-time service accrual and full-time service accrual.”
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.318(3)(f)
The Applicant submits that there is limited business synergy between the relevant instruments because of the significant discrepancies between the renumeration structures, classification structures and calculation of leave entitlements between the former and the latter two industrial instruments. The Applicant highlights that the ACTPS Infrastructure Agreement, unlike the RRA Agreement and Waste Management Award 2020, has been specifically tailored through negotiations with the local branches of the relevant unions to meet the specific requirements of the Applicant and its operations.
The public interest – s.318(3)(f)
The Applicant submits that the additional burden involved in the enforcement and operation of the transferable instruments which could in turn lead to additional costs and complications in the provision of weighbridge services for the Applicant’s customers is not in the public interest.
It is in the public interest, the Applicant submits, that the transferring employees have better conditions and pay than they would otherwise receive under the transferable instruments.
Conclusion
Having considered the material provided and taking account of all the matters in s.318(3) of the Act, I am satisfied that it is appropriate to grant the application. The orders will be issued separately with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR773378>
0
0
0