Australian Laboratory Services Pty Ltd

[2016] FWC 907

[2016] FWC 907

FAIR WORK COMMISSION

DECISION

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

Australian Laboratory Services Pty Ltd
(AG2015/7143)

Water, sewerage and drainage services
COMMISSIONER SAUNDERS	NEWCASTLE, 12 FEBRUARY 2016

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

[1] In my earlier decision dated 1 December 2015 1 (Earlier Decision), I declined to exercise my discretion to make an order under section 318(1) of the Fair Work Act 2009 (Cth) (the Act).

[2] On 21 December 2015, Australian Laboratory Services Pty Ltd (ALS) lodged a further application in the Fair Work Commission (Commission) for an order under section 318(1) of the Act.

[3] In the period between my Earlier Decision and the lodgement of the further application on 21 December 2015, ALS offered additional undertakings to the Transferring Employees 2 to address the concerns identified in my Earlier Decision

Should the order be made?

[4] I will now consider each of the mandatory factors set out in section 318(3) of the Act.

Views of the new employer and the Transferring Employees (s.318(3)(a))

[5] ALS continues to support the order sought by it under section 318(1) of the Act.

[6] Evidence provided in support of the further application demonstrates that:

(a) the views of each of the Transferring Employees have been sought by ALS in relation to its further application for orders under section 318(1) of the Act;

(b) the ASU has 15 members amongst the group of 21 Transferring Employees. Each of those 15 members agree with the proposed order, in light of the additional undertakings provided by ALS; and

(c) 18 of the 21 Transferring Employees have informed ALS in writing that they agree with the proposed order. The remaining three Transferring Employees have not responded to the invitation to indicate whether or not they agree with the proposed order.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment (s.318(3)(b))

[7] In my Earlier Decision, I found (at [31]) that a number of the Transferring Employees would be disadvantaged to a significant extent if the section 318(1) order sought by ALS at that time were made. The areas of disadvantage I identified related to ordinary hours of work and overtime.

[8] Those areas of disadvantage have been addressed in the new undertakings provided by ALS to the Transferring Employees. The ASU agrees with this assessment.

[9] Having regard to the new undertakings and the undertakings previously provided by ALS to the Transferring Employees (which continue to stand), I am satisfied that the Transferring Employees would not be disadvantaged by the order now sought by ALS in relation to their terms and conditions of employment.

Nominal expiry date of enterprise agreement (s.318(3)(c))

[10] For the reasons set out in paragraph [36] of my Earlier Decision, this factor weighs in favour of the order sought by ALS.

Productivity (s.318(3)(d))

[11] For the reasons set out in paragraphs [37] to [39] of my Earlier Decision, this factor weighs in favour of the order sought by ALS.

Economic disadvantage (s.318(3)(e))

[12] It is not in contest and I continue to be satisfied that ALS would not incur any economic disadvantage as a result of the HWA Agreement 3 continuing to apply to the Transferring Employees.

Business synergy (s.318(3)(f))

[13] For the reasons set out in paragraphs [41] to [42] of my Earlier Decision, this factor weighs in favour of the order sought by ALS.

Public interest (s.318(3)(g))

[14] Having regard to my conclusion that the order, if made, would not disadvantage the Transferring Employees in relation to their terms and conditions of employment and for the reasons set out in paragraphs [43] to [49] of my Earlier Decision, I am satisfied that it is in the public interest to make the order sought by ALS.

Conclusion

[15] Having carefully weighed each of the matters set out in paragraphs [3] to [14] above, I consider it is appropriate to exercise my discretion to make an order under section 318(1) of the Act in relation to the HWA Agreement.

[16] An order [PR576940] will be issued with this decision.

COMMISSIONER

 1   [2015] FWC 7916

 2   As defined in paragraph [2] of my Earlier Decision.

 3   As defined in my Earlier Decision

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<Price code A, AE400702  PR576939 >