Australian Leisure and Hospitality Group Pty Limited

[2015] FWC 6968

[2015] FWC 6968

FAIR WORK COMMISSION

DECISION

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

Australian Leisure and Hospitality Group Pty Limited
(AG2015/5124)

DEPUTY PRESIDENT SAMS SYDNEY, 13 OCTOBER 2015

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

[1] This is an application, filed by Australian Leisure and Hospitality Group Pty Limited (the ‘applicant’), pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’), seeking orders from the Fair Work Commission (the ‘Commission’) that The Royal Hotel Gatton – Employee Collective Agreement 2007-2012 (the ‘expired Agreement’) will not cover the applicant and transferring employees. The Agreement reached its nominal expiry date on 1 August 2012. The application is made in the context of the applicant having entered into a sales agreement with Crown Hotel Group Pty Ltd (‘Crown’) for the purchase of the Royal Hotel Gatton. It is proposed that the transferring employees be covered by the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

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.

[3] The application was accompanied by an outline of submissions and witness statements of three transferring employees (Ms Brooke Aitken, Mr William Buzza and Ms Rebecca Smit) and a witness statement of Mr Ezra Pyers, Human Resources Advisor for the applicant. This evidence demonstrated that at the time of the transfer of business, the Hotel employed 21 employees, of which 16 were non-managerial. The non-managerial employees are covered by the expired Agreement. Mr Pyers explained that he had undertaken a comparative exercise which demonstrated that the terms of the Award were no less favourable than the terms in the expired Agreement. Further calculations based on existing rosters demonstrated that all employees would receive higher wages if covered by the Modern Award. The witness statements of the transferring employees set out that, having been provided with the aforementioned comparative documents, they supported their employment not being covered by the expired Agreement. Mr Pyers added that there was a lack of business synergy between the expired Agreement and the Award and that administrative and payroll functions would be unnecessarily complicated if the orders sought were not granted by the Commission.

[4] Having considered the materials filed by the applicant and the witness statements, I intend to make the orders sought by the applicant. In doing so, I have taken all of the matters in ss 318(3) into account; in particular, the views of the applicant and the employees. I am satisfied that there is no disadvantage to the employees and that there would be a negative impact on the productivity of the applicant’s workplace, should the orders not be granted. For the sake of completeness, I am satisfied that granting the orders would not be contrary to the public interest. Orders giving effect to this decision are published contemporaneously with this decision.

DEPUTY PRESIDENT

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