Australian Payments Plus Limited Summary

[2023] FWC 1297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Payments Plus Limited

(AG2023/1660)

Banking finance and insurance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 1 JUNE 2023

S.318 - Application for an order relating to instruments covering new employer and transferring employees

Australian Payments Plus Limited (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the BPAY Group Enterprise Agreement 2018 (BPAY Agreement) does not cover the Applicant and any employees who transfer their employment from BPAY Group Pty Ltd to the Applicant (Transferring Employees). The Applicant will be the new employer of relevant Transferring Employees. The BPAY Agreement nominally expired on 16 March 2022.

The Applicant has filed a witness statement in support of its application, made by Mr Steven Martin Reid, Chief People Officer of the Applicant, dated 29 May 2023. It has also filed a witness statement made by Ms Deborah Ann Mellick, Head of People Operations of the Applicant, dated 30 May 2023, in support of its application. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Mr Reid and Ms Mellick, and the submissions made in the Form F40 Application filed in this matter. Specifically, I note that the relevant Transferring Employees support (by majority) the order/s sought by the Applicant, and that such relevant Transferring Employees will not be disadvantaged overall (in their terms and conditions of employment) if the orders sought are made. Further, the BPAY Agreement is likely to have a negative impact upon the productivity of the Applicant’s workplace, and there is a lack of business synergy between the BPAY Agreement and the work performed by the Applicant and Transferring Employees. I consider that the order sought by the Applicant is in the public interest as it would allow all of the Applicant’s employees to all be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I note that none of the criteria weigh against the making of the orders sought. I have therefore determined to exercise my discretion to make the orders sought by the Applicant pursuant to s.318(1) of the Act. An order in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Australian Payments Plus Limited applied to the Fair Work Commission for an order that the BPAY Group Enterprise Agreement 2018 would not cover the company and any employees transferring from BPAY Group Pty Ltd. The application was made pursuant to section 318 of the Fair Work Act 2009, which provides a mechanism for resolving disputes regarding the applicability of an enterprise agreement to a new employer and transferring employees. The BPAY Agreement had nominally expired on 16 March 2022. The applicant argued that the agreement was not suitable for its operations and would negatively impact the productivity of its workplace. It also contended that there was a lack of business synergy between the BPAY Agreement and the work performed by the applicant and the transferring employees.

The legal issues before the Deputy President were whether the BPAY Agreement should apply to the applicant and the transferring employees, and whether making the orders sought by the applicant would be in the public interest. The court had to consider the matters set out in section 318(3) of the Act, including whether the relevant transferring employees supported the order sought by the applicant, and whether they would be disadvantaged overall in their terms and conditions of employment if the orders were made. The court also had to consider whether the BPAY Agreement would have a negative impact upon the productivity of the applicant’s workplace, and whether there was a lack of business synergy between the BPAY Agreement and the work performed by the applicant and the transferring employees.

The Deputy President considered the evidence and submissions made by the applicant and concluded that none of the criteria set out in section 318(3) of the Act weighed against making the orders sought by the applicant. The Deputy President found that the relevant transferring employees supported the order sought by the applicant, and that they would not be disadvantaged overall in their terms and conditions of employment if the orders were made. The Deputy President also found that the BPAY Agreement was likely to have a negative impact upon the productivity of the applicant’s workplace, and that there was a lack of business synergy between the BPAY Agreement and the work performed by the applicant and the transferring employees. The Deputy President concluded that making the orders sought by the applicant was in the public interest as it would allow all of the applicant’s employees to be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace. The Deputy President exercised the discretion under section 318(1) of the Act to make the orders sought by the applicant. An order was issued contemporaneously with the decision.

Australian Payments Plus Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established