Bensonlily Surfers Paradise Pty Ltd T/A Surfers Paradise Marriott Resort & Spa

[2016] FWC 6326

[2016] FWC 6326

FAIR WORK COMMISSION

DECISION

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

Bensonlily Surfers Paradise Pty Ltd T/A Surfers Paradise Marriott Resort & Spa
(AG2016/4091)

Hospitality industry
COMMISSIONER SPENCER	BRISBANE, 5 SEPTEMBER 2016

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

[1] An application has been filed in relation to the Surfers Paradise Marriott Resort And Spa Enterprise Agreement 2012 [AE894140] (the Agreement)by Bensonlily Surfers Paradise Pty Ltd T/A Surfers Paradise Marriott Resort & Spa (the Applicant).

[2] The Agreement covers employees employed by Club Resorts No.1 Australia Ltd (Club Resorts) following a previous business sale between Club Resorts and EHP (Gold Coast) Pty Ltd. EHP (Gold Coast) Pty Ltd was the original Applicant for approval of the Agreement. On 20 May 2016, Bensonlily Surfers Paradise Pty Ltd purchased the business and assets from Club Resorts.

[3] The Applicant was represented by Mr Mark Sant and Mr Mark Norman of Gadens Lawyers. The application was accompanied by a Statutory Declaration of Mr Ben Baillie, Director of Finance of the Applicant. United Voice is covered by the Agreement and confirmed that they have no objection to the Order sought.

[4] In accordance with s.311(1) of the Act, a transfer of business from Club Resorts to the Applicant occurred on 20 May 2016. An enterprise agreement is a transferable instrument by operation of the Act s.312(1)(a). Section 313(1) provides that a transferrable instrument that covered the old employer and the transferring employees immediately before the termination of the employment will cover the new employer (being the Applicant). The operation of these sections means that the Applicant (the new employer) would be covered by the Agreement in relation to the transferring employees.

[5] Mr Sant, on behalf of the Applicant, confirmed that the Applicant had employed 17 non-transferring employees since 20 May 2016. Evidence was provided from 16 of the 17 non-transferring employees.

[6] Non-transferring employees are covered by the Hospitality Industry (General) Award 2010 (the Modern Award). The Applicant seeks an Order that the Agreement will cover any non-transferring employees of the Applicant who perform, or are likely to perform, the transferring work, pursuant to s.319(1)(b) of the Act.

Relevant legislation

[7] Section 313 provides:

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and
....

(3) This section has effect subject to any FWC order under subsection 318(1).

[8] Section 319 provides:

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.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover 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.

Consideration

[9] The Applicant submitted, with respect to the views of the employees, that 16 of the non-transferring employees had provided their views in support of the application. The Applicant explained the circumstances with regards to the inability of the Applicant to seek the views of the 17^th non-transferring employee at this time. United Voice does not object to the Order sought.

[10] The Applicant submitted that non-transferring employees will not be disadvantaged by the making of the Order in relation to their terms and conditions of employment, because the Agreement contains a number of terms and conditions which are superior to the Award.

[11] The Agreement has a nominal expiry date of 30 June 2015.

[12] The Applicant contended that the Agreement continuing to cover non-transferring employees would have a negative impact on their workplace productivity.

[13] It was submitted by the Applicant that it would incur economic disadvantage as a result of the different industrial instruments covering transferring and non-transferring employees, due to the administrative, rostering and payroll burdens.

[14] The Applicant submitted that there was a lack of business synergy between the Agreement and the Modern Award, and that there would be a high risk of industrial disharmony if the Agreement was to apply to transferring employees, and the Award was to apply to non-transferring employees.

Conclusion

[15] I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.

[16] The Order, PR585038, will issue with this Decision and will take effect in accordance with s.319(4) of the Act.

COMMISSIONER

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<Price code C, AE894140  PR585035 >