Australian Retail Management Services Pty Ltd

[2010] FWA 601

[2010] FWA 601

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.319—Application for an order relating to instruments covering new employer and non-transferring employees in agreements

Australian Retail Management Services Pty Ltd
(AG2009/20676)

COMMISSIONER SMITH SYDNEY, 29 JANUARY 2010

Transfer of business.

[1] This is an application by Australian Retail Management Services (ARMS) for an order pursuant to s.319 of the Fair Work Act 2009 (the Act) in relation to its commercial arrangement with Optus Mobile Investments Pty Limited trading as Virgin Mobile (Virgin Mobile).

[2] Given this arrangement the Optus Mobile Investments Pty Ltd Agreement 2009 (the Agreement) will continue to apply to employees of Virgin Mobile who were employed at the time the commercial arrangement was entered into. ARMS seeks to ensure that all new employees are covered by the same industrial instrument.

[3] Submissions were made on behalf of ARMS by Mr Stanton of Counsel. Mr Chris Georgiou, Human Resources Director, provided and affidavit dealing with the requirements of the Act.

[4] Relevantly s.319 of the Act provides:

“Orders relating to instruments covering new employer and non-transferring employees

……………………..

Matters that FWA must take into account

(3) In deciding whether to make the order, FWA 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.

[5] During the proceedings and in relation to s.319(3)(b) and (g) I drew attention to certain aspects of the Agreement and sought information about the instruments used to apply the no-disadvantage test.

[6] Mr Stanton drew attention to the notice under s.346M of the Workplace Relations Act 1996 issued by the Workplace Authority. In determining the public interest and whether any employee would be disadvantaged by the proposed order I rely upon the notice provided by the Workplace Authority and the fact that Counsel would bring to the attention of Fair Work Australia any matter which would likely cause concern in the proper application of the Act.

[7] Against this background I advised that I would issue the order. The order is found in PR993092.

COMMISSIONER

Appearances:

J Stanton of Counsel with C Georgiou on behalf of Australian Retail Management Services Pty Limited.

Hearing details:

2010.

Sydney:

January, 29.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR993091>