BevChain Pty Limited T/A BevChain

[2019] FWC 6661

[2019] FWC 6661

FAIR WORK COMMISSION

DECISION

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

BevChain Pty Limited T/A BevChain
(AG2019/3483)

Road transport industry
COMMISSIONER BISSETT	MELBOURNE, 25 SEPTEMBER 2019

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

[1] This matter involves an application by BevChain Pty Limited T/A BevChain (BevChain or the Applicant) under section 318 of the Fair Work Act 2009 (FW Act). The application seeks an order from the Fair Work Commission (the Commission) relating to three current employees of Linfox Australia Pty Ltd (Linfox) who are prospective employees of BevChain (the Transferring Employees), identified and named in Schedule A to the application.

[2] BevChain is seeking an order that the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 (the Linfox Agreement or the transferable instrument) does not cover BevChain and any of the Transferring Employees listed in Schedule A to the application, and that the BevChain (Victoria) Agreement 2018 (BevChain Agreement) will cover BevChain and each of the Transferring Employees.

[3] The application contained detailed grounds and submissions and was accompanied by an affidavit of Michael Assaf together with several attachments including Statements in Support from the Transferring Employees. Summarised, the grounds and submissions contend that:

•  The Transferring Employees are currently employed by Linfox under the terms of the Linfox Agreement, which has a nominal expiry date of 30 June 2020;

•  The Transferring Employees subcontract their labour to BevChain and perform warehousing duties (Transferring Work) for the storage and distribution of Carlton & United Breweries (CUB) product.

•  BevChain took over the Transferring Work on or about 1 October 2018.

•  The BevChain Agreement was approved on 5 July 2019 and as such, BevChain will start engaging employees directly to perform this work.

•  BevChain is also willing to employ the Transferring Employees.

•  In August 2019 BevChain made offers of employment to the Transferring Employees who have accepted offers of employment with BevChain.

•  The Transferring Employees are anticipated to begin employment with BevChain within three months of the termination of their employment with Linfox and to perform 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 if the Transferring Employees commence employment with BevChain within the proposed timeframe;

•  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.

•  The orders sought are supported by all of the Transferring Employees and by the Transport Workers’ Union of Australia – Vic/Tas Branch (TWU) which is the union that ordinarily represents the industrial interests of the Transferring Employees.

[4] Upon receipt of the application my Chambers contacted the TWU seeking confirmation it was in support of the orders sought. The TWU subsequently advised my Chambers it has no objections and is in support of the orders sought, and did not wish to be heard on the matter.

[5] In the absence of any objection to the application, and having been advised by the Applicant’s representative that it was content for the application to be determined on the papers, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[6] Section 318 of the Act sets out the circumstances in which an order such as that sought by BevChain may be made by the Commission:

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.

[7] I have 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. I am satisfied that by virtue of the operation of the FW Act, if the orders sought were not made, the Transferring Employees would continue to be covered by the Linfox Agreement.

[8] Having examined and considered the application, and the accompanying materials including the Affidavit of Michael Assaf and the Statements in Support from the Transferring Employees, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318(3) of the FW Act and am satisfied that it is appropriate to make the orders sought under s.318(1) and (b) of the FW Act.

[9] In accordance with section 318(4) of the FW Act, the order 1 shall have effect from the time when the Transferring Employee becomes employed by BevChain or the date of the order, whichever is the later.

COMMISSIONER

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