Australian Customs and Border Protection Service

[2010] FWA 2555

[2010] FWA 2555

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Australian Customs and Border Protection Service
(AG2010/7263)

COMMISSIONER DEEGAN CANBERRA, 30 MARCH 2010

Orders relating to instruments covering new employer and transferring employees.

[1] The matter arises from an application filed on 19 March 2010 under s.318 of the Fair Work Act 2009 (“the Act”) by Australian Customs and Border Protection Service (“the new employer or Customs”) for an order that the Australian Government Solicitor (“AGS”) Enterprise Agreement 2009 (“the transferable instrument”) not cover the new employer or any employees of the new employer formerly engaged by the AGS (“the relevant employees”).

[2] The background to this application is as follows:

• In 1999 Customs outsourced the performance of its core legal work to AGS with the contract between Customs and AGS due to expire on 31 March 2010. AGS created a “Customs Legal Unit”. On expiry of the contract, Customs intends to establish its own Legal Services Branch.



• Customs conducted an open merit-based selection process to recruit staff for its new Legal Services Branch. As a result of the process, six staff that are part of the AGS Customs Legal Unit are to be offered employment with Customs.

[3] Section 318(1) of the Act relevantly provides:

“318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA 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) FWA 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 FWA must take into account

(3) In deciding whether to make the order, FWA 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.”

[4] Each matter that Fair Work Australia (“FWA”) must take into account when deciding whether to make an order under s.318 was addressed in the application and in a statutory declaration provided by Mr Wayne Lodge, Director People ACT (Employee and Workplace Relations) Customs. Additional information was provided at the hearing. On the basis of the information provided I reached a number of conclusions about those matters in s.318.

[5] It is the new employer’s position that it should not be covered by the transferable instrument. All transferring employees have indicated a preference to be covered by the Australian Customs Service Collective Agreement 2007-2010 (“the Customs Agreement”).

[6] Given the relative terms of the transferable instrument and the Customs Agreement (as supplemented by a proposed s.24 Determination) and the additional information provided by Customs I am satisfied that no relevant employee would be disadvantaged in relation to their terms and conditions of employment if the order were granted in the terms sought.

[7] There is no reason to doubt the new employer’s assertions that the application of the same agreement to all employees working for Customs will contribute to productivity in the workplace. It is apparent that the new employer would incur some cost if the transferable instrument were to apply, although it is unlikely to amount to significant economic disadvantage.

[8] I accept that there is little business synergy between the transferable instrument and the Customs Agreement and that a negative impact on productivity could result from the application of the transferable instrument.

[9] I am unable to discern any public interest in refusing the order sought.

[10] The representative for the CPSU consented to the order sought being made.

[11] Having taken into account all those matters set out in s.318 of the Act I have decided to make an order that the transferable instrument will not apply to the new employer or any relevant employees engaged by the new employer.

[12] An Order [PR995574] giving effect to this decision is published separately.

COMMISSIONER

Appearances:

M Tehan, Solicitor, for the applicant.

M Taylor for the CPSU, the Community and Public Sector Union.

Hearing details:

30 March 2010

Canberra

Printed by authority of the Commonwealth Government Printer

<Price code A, PR995573>