BevChain Australia Pty Ltd

[2018] FWC 5899

[2018] FWC 5899

FAIR WORK COMMISSION

DECISION

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

BevChain Australia Pty Ltd
(AG2018/5124)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 26 SEPTEMBER 2018

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

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by MinterEllison on behalf of their client, BevChain Pty Limited trading as BevChain (BevChain or the Applicant). The application has been made in respect of a number of prospective employees, identified and named in Schedule A to the application.

[2] The application was lodged at Melbourne on 12 September 2018. The application seeks an Order from the Fair Work Commission (the Commission) relating to former employees of Linfox Australia Pty Ltd (Linfox) who are prospective employees of BevChain (the Transferring Employees).

[3] The application contains grounds and submissions which, in relevant summary, contend that:

•  The Transferring Employees are currently employed by Linfox under the terms of the Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2018 (the Linfox Agreement);

•  The Transferring Employees are anticipated to begin employment with BevChain on 1 October 2018 and to perform truck driving and/or warehousing duties (Transferring Work);

•  There is an association between BevChain and Linfox, and a transfer of business from, relevantly, Linfox to BevChain in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur when the Transferring Employees commence employment with BevChain as is anticipated;

•  The Transferring Employees from Linfox performing Transferring Work with BevChain would be covered by the Linfox Agreement, which would create significant operational challenges for BevChain. For that reason, BevChain does not intend to employ the Transferring Employees if the Linfox Agreement continues to cover them after they commence employment with BevChain, and in the absence of the Orders sought by this application.

[4] The matter was listed for a Hearing in Chambers on 26 September 2018. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“318 Orders relating to instruments covering new employer and 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 transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

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 transferring employee, or an employee who is likely to be a transferring employee;

(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 transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

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

[6] The Commission has reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application, and the accompanying materials including the Affidavit of Steve Innes and the Statements of Rodney Stevenson and David Holt, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted, and Orders [PR700654] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

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<AE429372  PR700652>