Australian Postal Corporation T/A Australia Post
[2024] FWC 516
•5 MARCH 2024
| [2024] FWC 516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Australian Postal Corporation T/A Australia Post
(AG2024/255)
| Clerical industry | |
| COMMISSIONER CIRKOVIC | MELBOURNE, 5 MARCH 2024 |
Application for orders relating to an instrument covering new employer and transferring employees.
Introduction and background
The Australian Postal Corporation (Australia Post) is a Government Business Enterprise, providing postal and parcel services. Australia Post is the sole shareholder of Star Track Express Pty Limited (StarTrack), which is a transport, freight and logistics company. Australia Post and StarTrack form part of the Australia Post Group.
StarTrack’s customer contact centre employees in classification Grades 3 to Grade 6 are currently covered by the StarTrack Customer Service Centre and Clerical Enterprise Agreement 2021 (ST EBA), which has a nominal expiry date of 21 July 2025. The Australian Services Union (ASU) represent employees under the ST EBA.
Australia Post’s customer contact centre employees in classifications Level 1 to Level 7 are currently covered by the Australia Post Enterprise Agreement 2021 (AP EBA), which has a nominal expiry date of 30 September 2024. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Community and Public Sector Union (CPSU) represent employees under the AP EBA. The Transport Workers’ Union (TWU) do not cover employees in either contact centre but were notified of the unification as they are a bargaining representative to the AP EBA.
Australia Post intends to integrate StarTrack and Australia Post’s separate customer contact centres in Brisbane and Melbourne to create a unified team that supports customers across both StarTrack and Australia Post products and services. Australia Post made offers of employment to all of the StarTrack Contact Centre Employees on 18 December 2023, which 100% of employees accepted.
Australia Post seeks orders under s 318 of the Fair Work Act 2009 (Cth) (Act) that:
(a)Pursuant to s.318(1)(a) the StarTrack Customer Service Centre and Clerical Enterprise Agreement 2021 (ST EBA), being a transferable instrument that would, or would be likely to cover the Australian Postal Corporation (Australia Post) and its customer contact centre employees previously employed by Star Track Express Pty Ltd (Transferring Employees) because of s.313(1)(a) of the FW Act does not, and will not, cover Australia Post and the Transferring Employees;
(b)Pursuant to section 318(1)(b) of the FW Act, an enterprise agreement, being the Australia Post Enterprise Agreement 2021 (AP EBA) does, or will, cover the Transferring Employees; and
(c)Pursuant to section 318(4) of the FW Act, the orders shall come into operation for each Transferring Employee at the time the employee becomes employed by Australia Post.
Procedural matters
On the filing of the application for orders pursuant to s 318 of the Act, I gave all parties an opportunity to be heard in relation to the application. They did not take up the offer to be heard.
Accordingly, I have determined this application on the basis of the information contained in Australia Post’s application dated 7 February 2024 and the witness statement and annexures of Ms Chelsea O’Reilly, General Manager, Customer Success of Australia Post, dated 7 February 2024.
Section 318 of the Act
The issue I need to determine in this matter is whether or not to exercise my discretion under section 318(1) of the Act to make the orders sought by Australia Post.
Section 318(2) of the Act provides that the Commission may make an order under s 318 only on application by, inter alia, ‘the new employer or a person who is likely to be the new employer’. In light of the uncontested evidence before the Commission that Australia Post made offers of employment to all of the StarTrack Contact Centre Employees on 18 December 2023, and as of 7 February 2024, 100% of the employees had accepted the offer I am satisfied that Australia Post is ‘a person who is likely to be the new employer’ within the meaning of s 318(2)(a) of the Act.
Section 318(3) of the Act provides that, in deciding whether to make the order under section 318(1), I 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.
Next it is necessary to consider s 318(3), which states that, in deciding whether to make an order under s 318(1), the Commission must take into account certain matters that are set out in ss 318(3)(a) to (g).
The views of the new employer - s 318(3)(a)(i)
Australia Post’s view is that the application should be granted. Australia Post sees the transfer of the StarTrack Contact Centre Employees to Australia Post as an important part of unifying its workforce and enabling greater operational and organisational integration. These are sensible reasons that weigh in favour of granting the application.
The views of the employees who would be affected by the order - s 318(3)(a)(ii)
Australia Post submitted that it had consulted extensively with the StarTrack Contact Centre Employees and their representatives in relation to the transfer of employment to Australia Post, and the terms and conditions of employment with Australia Post. On 5 September 2023 the Australia Post Group provided the StarTrack Contract Centre Employees with a summary of a comparison of the terms and conditions between the ST EBA and AP EBA. As part of the consultation process, in September 2023 the Australia Post Group conducted a survey of the StarTrack Contract Centre Employees on integrating the StarTrack Contact Centre into Australia Post, where 86% voted in favour of transferring to Australia Post and being subject to the AP EBA.
On 2 February 2024, the ASU provided Australia Post with a letter confirming its support for the Application and the result that the AP EBA would apply to the employees in their employment at Australia Post. The CEPU, CPSU or TWU have not communicated to Australia Post or the Commission an intention to oppose the Application.
On 15 February 2024, my Chambers sent correspondence attaching the F40 application and witness statement of Chelsea O’Reilly to parties seeking if any party wished to be heard or provide submissions on the application. I did not receive any submissions or responses indicating any party wished to be heard.
In my view the transferring employees have been afforded a reasonable opportunity to express their views about the application. None have expressed any concern about the application. I infer that those employees who are members of the CEPU, CPSU, and the ASU support the application. This factor weighs in favour of granting the orders sought.
Whether any employees would be disadvantaged by the order - s 318(3)(b)
Section 318(3)(b) requires the Commission to consider whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment. In my view this consideration is concerned with the question of whether any employees would be disadvantaged on an overall, rather than a line-by-line, basis.
Australia Post submitted that on an overall basis the Transferring Employees will not be disadvantaged in relation to their terms and conditions of employment when employed by Australia Post under the AP EBA, as sought by the Orders.
In support of its submission, Australia Post submitted a document provided to employees on 18 December 2023 comparing wages and allowances under the Australia Post Agreement and the Star Track Agreement.
A summary of the hourly wage rates each classification level will transfer across as is below:
· level 3 employees under the ST EBA (hourly rate $27.94) will transfer across at level 2 under the AP EBA (hourly rate $32.90);
· level 4 employees under the ST EBA (hourly rate $29.38) will transfer across at level 2 under the AP EBA (hourly rate $32.90);
· level 5 employees under the ST EBA (hourly rate $30.35) will transfer across at level 3 under the AP EBA (hourly rate $35.47); and
· level 6 employees under the ST EBA (hourly rate $31.31) will transfer across at level 3 under the AP EBA (hourly rate $35.47).
Further, Transferring Employees under the AP EBA will additionally receive fewer ordinary hours of work and smaller span of hours that still results in a higher weekly wage, more favourable penalty rates, similar overtime entitlements calculated on a higher ordinary rate of pay, and increased personal leave entitlements.
Having reviewed the table of conditions and the submissions that have been provided to the Commission, I consider that employees will not be disadvantaged by the proposed orders in relation to their terms and conditions of employment. The consideration in s 318(3)(b) weighs in favour of granting the application.
The nominal expiry date of enterprise agreements - s 318(3)(c)
The nominal expiry dates of the ST EBA and the AP EBA are 21 July 2025 and 30 September 2024. Under the AP EBA, the Transferring Employees will be able to participate in bargaining 10 months earlier than under the ST EBA. This weighs in favour of granting the application.
Whether negative impact on productivity etc - s 318(3)(d)
The Commission must consider whether the transferrable instrument would have a negative impact on the productivity of the new employer’s workplace. Australia Post submitted that having employees performing the same work on different terms and conditions of employment would undermine efforts by Australia Post to unify its workforce and standardise employment conditions for its employees. I agree. I accept that this could have a negative impact on productivity, but not that it necessarily would have such an impact. I consider this to be a neutral consideration.
Whether significant economic disadvantage - s 318(3)(e)
Section 318(3)(e) requires the Commission to consider whether the new employer would incur ‘significant economic disadvantage’ as a result of the transferrable instrument covering the new employer.
Australia Post submitted although there will unlikely be any ‘significant economic disadvantage’ as a result of the ST EBA applying to Australia Post, compliance with the ST EBA will result in additional and avoidable administrative costs due to the concurrent operation of the agreements, and costs associated with a lack of synergies between the agreements.
This factor (s 318(3)(e) of the Act) weighs in favour of making the orders sought by Australia Post.
Whether there is business synergy between instruments etc - s 318(3)(f)
The Commission must consider ‘the degree of business synergy’ between the transferrable instrument and any existing workplace instrument of the new employer. I agree with Australia Post that there is little business synergy between the two instruments. This weighs moderately in favour of granting the applications.
The public interest - s 318(3)(g)
Making orders in the terms sought by Australia Post would be consistent with the objects of Part 2-8 of the Act, in that they would provide an appropriate balance between the protection of employees’ terms and conditions of employment under enterprise agreements and the interests of Australia Post in running its enterprise efficiently.
I am satisfied making the orders sought by Australia Post would be in the public interest. This factor (s 318(3)(g) of the Act) weighs in favour of making the orders sought by Australia Post.
Conclusion
Having taken into account the matters in s 318(3), I consider that it is appropriate for the Commission to exercise its discretion under s 318(1) to make the orders that are sought.
I will make orders under s 318(1)(a) that the ST EBA not cover Australia Post or any of the transferring employees of StarTrack and that such employees will be covered by the AP EBA. An order will be issued separately in PR771894.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR771851>
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