Bapcor Logistics Services Pty Ltd T/A Bapcor Logistics Services

[2021] FWC 1661

[2021] FWC 1661

FAIR WORK COMMISSION

DECISION

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

Bapcor Logistics Services Pty Ltd T/A Bapcor Logistics Services
(AG2021/4068)

Vehicle industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 MARCH 2021

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

[1] Bapcor Logistics Services Pty Ltd T/A Bapcor Logistics Services (Bapcor) has applied for an order under s 319(1)(b) of the Fair Work Act 2009 (the Act) that the Bapcor Warehouse Agreement 2018 (the Bapcor Agreement) will cover any non-transferring employee who commences employment with it on or after 19 April 2021 at its Tullamarine, Victoria site.

[2] The Agreement was originally approved by the Commission on 1 April 2019 1, was varied on 2 March 20212 and reaches its nominal expiry date on 7 April 2022. In the absence of an order in the form sought, the relevant non-transferring employees would otherwise be covered by the Vehicle Repair, Services and Retail Award 20203 (the Award).

[3] Given the material that has been filed, and the fact that there are currently no non-transferring employees, I have determined that the matter can be dealt with on the papers.

The applicable legislation

[4] Sections 317 and 319 of the Act relevantly provide:

“317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

…

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

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

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

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

Background

[5] The Form F40 – Application for orders in relation to a transfer of business filed in support of this Application sets out the relevant background to the application.

[6] The Applicant is a new subsidiary of the Bapcor Corporate Group, the parent company of which is Bapcor Limited. The Bapcor Corporate Group has a number of warehouses, fulfilment and distribution facilities among its various entities, including a facility at Nunawading (the Nunawading Site), which is operated by the Bapcor Corporate Group entity, Automotive Brands Group Pty Ltd (ABG).

[7] On or around the 19 April 2021, the Applicant expects to complete development of its new warehouse, fulfilment and distribution facility at 127-139 Link Road, Tullamarine (the Tullamarine Site) following which it will progressively consolidate over the next 6-12 months its various operations (including the Nunawading Site) into the new Tullamarine Site. In doing so, the Applicant will operate the Tullamarine Site and become the sole service provider to the Bapcor Group of warehousing, fulfilment and distribution services. A significant number of transferred roles will be created at the Tullamarine Site for existing employees from other entities within the Bapcor Group.

[8] The operations of ABG at the Nunawading Site will be the first to transfer to the new Tullamarine Site as both sites adopt the same technology and operating model. Since December 2020, ABG employees at the Nunawading Site have been offered, and 18 employees have accepted (the Transferring Employees), employment at the Tullamarine Site. These employees will be performing the transferring work (the Transferring Work).

[9] Offers of employment made to the Transferring Employees for roles at the Tullamarine Site have been made on the basis that they would continue to be covered by the Bapcor Agreement, which was varied to extend its coverage to the Tullamarine Site on 2 March 2021 4. Following the commencement of operation of the Tullamarine Site, new employees and employees from other Bapcor Group entities (other than the Nunawading Site) will also be engaged to undertake Transferring Work at the Tullamarine Site (Non-Transferring Employees).

Consideration

[10] The application for an order under s 319(1)(b) of the Act has been made by the new employer 5. In deciding whether to make the order sought, I must take into account the matters outlined in s 319(3) of the Act. However, before turning to consider the orders sought by Bapcor, it is necessary to establish whether the Bapcor Agreement is a transferrable instrument that would cover Bapcor and the Non-Transferring Employees, subject to any order of the Commission.

Transferable Instrument

[11] I am satisfied that the Bapcor Agreement is a transferrable instrument pursuant to s 312(1)(a) of the Act. I am further satisfied that:

(i) Bapcor will be engaging new employees that are not Transferring Employees (s 314(1)(b));

(ii) the Non-Transferring Employees will be performing Transferring Work (s 314(1)(c)); and

(iii) at the time Non-Transferring Employees are engaged by Bapcor, the Award would otherwise apply to them (s 314(1)(d)),

[12] As a consequence of the above, I am satisfied that the Bapcor Agreement will not cover the Applicant and Non-Transferring Employees, subject to any order the Commission may make. I now turn to consider the matters set out in s. 319(3) of the Act.

Section 319(3)(a) – views of the new employer and employees who would be affected

[13] Bapcor submit that it wishes to engage employees in classifications on a common set of terms and conditions, regardless of whether they are Transferring Employees or Non-Transferring Employees. Bapcor further submits that if the order were not made, it would result in two sets of employment conditions for staff working side-by-side in the same roles resulting in unfairness to non-transferring employees.

[14] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) has advised that it does not oppose the application.

[15] There are currently no Non-Transferring Employees engaged and I note that the Agreement will apply to Transferring Employees from the commencement of their employment with the new employer, pursuant to s 313(1) of the Act.

[16] The above factors weigh in favour of granting the application.

Section 319(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[17] While there are currently no Non-Transferring Employees, I note that the terms and conditions of employment under the Bapcor Agreement are more favourable than those in the Award. I can discern no detriment and as such, this weighs in favour of granting the application.

Section 319(3)(c) - if the order relates to an enterprise agreement--the nominal expiry date of the agreement

[18] As noted above, the Bapcor Agreement reaches its nominal expiry date on 7 April 2022, which ensures that Non-Transferring Employees will have an opportunity to participate in bargaining directed to the renewal of the Bapcor Agreement within a reasonable period of time. Non-Transferring Employees will not be prejudiced in their bargaining rights. This is therefore a neutral consideration.

Sections 319(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[19] I accept the Bapcor submission that the granting of the application is expected to enhance productivity, including by avoiding the practical and industrial difficulties associated with applying two sets of terms and conditions on the site. This would in Bapcor’s submission offset any short-term cost savings that might be otherwise realised by applying the Award conditions to Non-Transferring Employees if the application were not granted. This weighs in favour of the application being granted.

Section 319(3)(e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[20] It was not submitted and nor do I consider that Bapcor would incur significant economic disadvantage as a result of the Agreement covering it in respect of Non-Transferring Employees. This is therefore a neutral consideration.

Section 319(3)(f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[21] I note that there are differences between the Bapcor Agreement and the Award, suggesting there would be reduced business synergy if both were to apply to Bapcor. This weighs in favour of granting the application.

Section 319(3)(g) – the public interest

[22] There are no public interest considerations that militate against the granting of the application.

Conclusion

[23] Having considered each of the matters outlined in s 319(3) of the Act and the material that has been filed, I am satisfied that an order pursuant to s 319(1)(b) of the Act should be made. The Order (PR728165) will take effect from 29 March 2021 or when Non-Transferring Employees are employed by Bapcor and start to perform Transferring Work at the Tullamarine Site, whichever is the latter date.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728133>

 1   [2019] FWCA 2065

 2   [2021] FWCA 1090

 3   MA000089

 4   [2021] FWCA 1090

 5 s. 319(2) of Fair Work Act 2009