Australian Tourist Park Management Pty Limited T/A NRMA Parks and Resorts

[2021] FWC 4122

[2021] FWC 4122

FAIR WORK COMMISSION

DECISION

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

Australian Tourist Park Management Pty Limited T/A NRMA Parks and Resorts
(AG2021/5796)

BIG4 BALLARAT GOLDFIELDS HOLIDAY PARK ENTERPRISE AGREEMENT 2010

Hospitality industry
COMMISSIONER YILMAZ	MELBOURNE, 15 JULY 2021

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

[1] Australian Tourist Park Management Pty Limited T/A NRMA Parks and Resorts (the Applicant) has made an application pursuant tos.318 of the Fair Work Act 2009 (the Act) for an order that the Big4 Ballarat Goldfields Holiday Park Enterprise Agreement 2010 1 (the Agreement) not cover Australian Tourist Park Management Pty Limited T/A NRMA Parks and Resorts (‘new employer’) and the transferring employees of Corpivic (No. 8) Pty Limited (‘old employer’) in respect of their employment with the new employer.

[2] The Form F40 and attachments filed in support of the application confirm that the new employer signed a contract on 18 June 2021 with the old employer to purchase the Big4 Ballarat Goldfields Holiday Park effective 29 June 2021.

[3] Employees of Big4 Ballarat Goldfields Holiday Park are currently covered by the Agreement.

[4] As part of the acquisition, the new employer offered employment to 13 employees of the older employer. At the time of this decision all 13 employees accepted employment with the new employer and their employment commenced on 29 June 2021. As such, a transfer of business in respect of the transferring employees has taken effect for the purposes of s.311 of the Act.

[5] The Applicant submits that no transferring employee will be disadvantaged should an order be made, in relation to their terms and conditions of employment. In particular, Annexure A to the Form F40 filed by the Applicant, reveals an analysis comparing the terms of the Agreement with pay and entitlements provided by the Hospitality Industry General Award 2020 (the Award) which would cover transferring employees should I make the order as requested.

[6] Importantly, letters of offer were provided to transferring employees which confirm that grandfathered entitlements will also apply to them as appropriate and specifically employees will:

a) Maintain existing salaries at 3% above the Award for Salaried and Permanent Employees on commencement of employment until the Award rates meet or exceed this salary;

b) Maintain the existing overnight stay allowance of $120 (applicable to one casual employee only at present): and

c) Maintain existing laundry arrangements which permit employees to use the employer’s laundry facilities to launder uniforms.

[7] In considering the views of employees who would be affected by the order for the purposes of 318(3)(a)(ii) of the Act, the Applicant has confirmed that all 13 transferring employees have signed an offer of employment which stated, amongst other things, that the new employer would be making an application to the Commission seeking to have the Award cover their employment instead of the Agreement. Furthermore, the offer of employment confirmed that the Award covers other frontline employees across the new employer’s Parks nationally and attached a summary document comparing the Agreement with the Award provisions. A redacted copy of the offer of employment has been attached as Annexure B to the Form F40 filed by the Applicant.

[8] In addition, I note that the Agreement expired on 18 February 2015 and that the terms of the Agreement are largely outdated when compared to the Award. Furthermore, the terms of the Award are similar and no less favourable than the terms of the Agreement.

[9] Pursuant to s.318(3)(a) I have taken into account the views of the new employer and the views of the employees who would be affected by the order based on the material before me. For the purposes of s.318(3)(b) of the Act I am satisfied that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment.

[10] I have also taken into account the material provided by the Applicant in support of its
application and the matters set out in s.318(3) of the Act. I am satisfied the materials provided
by the Applicant, when considered against the matters set out in s.318(3) of the Act, support
the making of the order.

[11] An order 2 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE884244  PR731664>

 1   AE884244.

 2   PR731684.