Australian National Hotels Pty Limited T/A Network Gaming

[2019] FWC 4540

[2019] FWC 4540

FAIR WORK COMMISSION

DECISION

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

Australian National Hotels Pty Limited T/A Network Gaming
(AG2019/1778)

TABCORP TECHNICAL FIELD SERVICE ENTERPRISE AGREEMENT 2016
(ODN AG2016/3763)  [AE421247]

Tasmania
DEPUTY PRESIDENT BARCLAY	HOBART, 1 JULY 2019

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

[1] By Application dated 27 May 2019 the Applicant has sought orders in relation to the transfer of business.

[2] The Applicant trading as Network Gaming leases gaming machines to venues in Tasmania. To facilitate the installation, servicing and repairs of the machines Network Gaming had since 2013 contracted Tabcorp Wagering Holdings Pty Ltd (Tabcorp) to provide those services.

[3] Network Gaming now wishes to provide those services itself. As a result the contract with Tabcorp for the provision of those services (which expires on 30 August 2019) will not be renewed. It is proposed, subject to my making orders in relation to the transfer of business, that Network Gaming will employ the former employees of Tabcorp for the purposes of carrying out those functions itself.

[4] There are 7 employees who are affected by the transfer. If the orders sought are made the employees will transfer from Tabcorp to Network Gaming and be paid a redundancy, annual leave and long service leave entitlements by Tabcorp. They will then be employed by Network Gaming. The employees will commence work on 31 August 2019.

[5] The order sought is that the Tabcorp Technical Field Service Enterprise Agreement 2016 which applies to the employees while that are employed by Tabcorp not apply to the employees when they take up employment with Network Gaming. It is proposed that the employees be employed with Network Gaming on individual contracts. Absent such an order the Tabcorp enterprise agreement would apply to any transferring employees.

[6] I note the transfer is voluntary. That is, the employees must agree.

[7] The employees consent to the orders being made.

[8] I am nevertheless required to be satisfied of the matters set out in section 318(3) of the Fair Work Act 2009 (the Act).

[9] The Applicant has provided helpful submissions in respect to these matters. I set them out below:

“Section 318(3) factors

The Fair Work Commission (Commission) must take into account the factors set out in 318(3) of the Act in deciding whether to make the order (as well as any additional factors that the Commission considers relevant).

In relation to each of the factors in 318(3), the Applicant submits the following:

(a) Views of Network Gaming and the Transferring Employees

(i) Views of Network Gaming: Network Gaming supports the application.

(ii) Views of the Transferring Employees:

The Transferring Employees support the application. Network Gaming has made significant efforts to engage with the Transferring Employees to communicate the impact on them in relation to the Transfer of Business. Efforts include:

A. 24 April 2019 – organising adetailed discussion with Transferring Employees explaining the comparable terms and conditions, individual contracts, service entitlements and dependencies for the offer of employment;

B. 24 April – Transferring Employees were provided with documents which show a side-by-side comparison of current employment conditions against prospective conditions after the Transfer of Business;

C. 24 April – Transferring Employees were provided with template contracts which represented the contracts of employment that would be applicable to them after the completion of the Transfer of Business;

D. 30 April – Transferring Employees were given the opportunity to vote in a secret ballot which asked them to answer ‘yes’ or ‘no’ to accepting Network Gaming’s prospective employment conditions proposal. The result of the Field Service Ballot Paper was a 100% ‘yes’ vote.

(b) Whether any employee would be disadvantaged in relation to their terms and conditions of employment;

There will be no disadvantage to the Transferring Employees because the Transferring Employees have been guaranteed that:

(i) transferring to Network Gaming is a voluntary decision;

(ii) regardless of whether they transfer, Tabcorp will pay out the Transferring Employees’ redundancy, annual leave, and long service leave entitlements; and

(iii) Network Gaming will, as at the time of the transfer of employment, recognise all Transferring Employees:

A. accrued personal leave entitlements;

B. continuity of service for the purposes of the long service leave entitlements; and

C. service for the purpose of parental leave entitlements and requests for flexible work arrangements; and

D. Transferring Employees will be employed under a contract of employment which offers terms which are not disadvantageous and, on a monetary basis, better than otherwise offered under the Enterprise Agreement.

b) Nominal expiry date of the Enterprise Agreement;

The Enterprise Agreement has a nominal expiry date of 20 September 2020. This means that if the Enterprise Agreement transferred, Network Gaming will be bound by the terms of the Enterprise Agreement for at least another year after the Transfer of Business takes place and which would limit its ability to freely negotiate its own contractual terms with its new employees.

c) Whether the Enterprise Agreement would have a negative impact on the productivity of Network Gaming;

There would be an administrative burden of applying 2 industrial instruments (i.e. the Enterprise Agreement to the Transferring Employees and the Business Equipment Award 2010 (Award) to other employees). This would also create 2 sets of terms and conditions despite the employees performing the same role.

It would be unfair for the Enterprise Agreement to apply to Network Gaming in that it would be inefficient and unproductive for Network Gaming to be forced into contractual terms with its employees that it did not bargain for.

d) Whether Network Gaming would incur significant economic disadvantage as a result of the transferable instrument covering Network Gaming;

Network Gaming would incur an administrative burden if it was required to apply two industrial instruments that would create two sets of employment conditions for employees that were performing the same work.

e) The degree of business synergy between the Enterprise Agreement and the Business Equipment Award;

There are differences between the Enterprise Agreement the Award which would create an administrative burden if Network Gaming was required to apply both industrial instruments.

f) Public Interest;

It is in the public interest to grant the application for the following reasons:

(i) the contact of employment offered by Network Gaming offers terms and conditions that are better than the Enterprise Agreement. To the extent that there is any disadvantage the offer of employment is not significantly less advantageous;

(ii) the Transferring Employees will receive redundancy payments from Tabcorp on 30 August 2019 in addition to continuing employment with Network Gaming on substantially similar terms and conditions;

(iii) not granting the application will prevent the Transfer of Business from being finalized and result in the Transferring Employees being left without employment; and

(iv) the application is consistent with the objectives listed in section 309 of the Act in that the interests of the Transferring Employees are safeguarded, there is no overall disadvantage in the terms and conditions of employment of the Transferring Employees, the granting of the order will maintain employment for the Transferring Employees and the Transferring Employees support the application.”

[10] A statutory declaration in support of the Application was relied on declared by the People and Culture Manager of the Applicant Ms Tanya Kruimink.

[11] I accept the evidence contained in the statutory declaration and the submissions which I have set out above. I take into account all the matters referred to in s 318 of the Act. I am satisfied the orders sought should be made. I therefore order as follows:

That on and from 31 August 2019 the Tabcorp Technical Field Service Enterprise Agreement 2016 (Enterprise Agreement) will not cover those employees (Transferring Employees) who:

(a) Until 30 August 2019 will be employed by Tabcorp in the role of Technician 3 under the Enterprise Agreement;

(b) on 31 August 2019 will commence employment with Network Gaming in the role of Field Services Technician; and

(c) who will perform the same, or substantially the same work for Network Gaming as they performed for Tabcorp (Transferring Work).

DEPUTY PRESIDENT

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