Bidvest (NSW) Pty Ltd T/A Bidvest Sydney

[2016] FWC 5733

[2016] FWC 5733

FAIR WORK COMMISSION

DECISION

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

Bidvest (NSW) Pty Ltd T/A Bidvest Sydney
(AG2016/4180)

DEPUTY PRESIDENT DEAN SYDNEY, 17 AUGUST 2016

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

[1] Bidvest (NSW) Pty Ltd T/A Bidvest Sydney (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Bidvest Sydney Transport - Enterprise Agreement 2015 (the Agreement) cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work.

[2] The transfer of business within the meaning of s.311(1) of the Act occurred on 1 July 2016 when all employees of United Imports & Exports Co Pty Ltd (United Imports) were transferred to the Applicant. The Applicant and United Imports are related bodies corporate and both are subsidiaries of Bidvest Australia Limited. In accordance with s.313(1) of the Act, the Agreement, being a transferable instrument by virtue of s.312(1)(a) of the Act, covers the Applicant (new employer) and transferring employees. The Applicant currently has 2 non-transferring employees and these employees are covered by the Road Transport and Distribution Award 2010 (the Award). The Applicant seeks an order under s.319(1)(b) of the Act that the Agreement cover current and future non-transferring employees who are otherwise covered by the Award.

Relevant Legislation

[3] Section 314 of the Act provides:

314 New non-transferring employees of new employer may be covered by transferable instrument

(1)  If:

 (a)  a transferable instrument covers the new employer because of paragraph 313(1)(a); and

(b)  after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and

(c)  the non-transferring employee performs the transferring work; and

(d)  at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;

then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.

(2)  A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

(3)  This section has effect subject to any FWC order under subsection 319(1).

[4] Section 319(1) sets out the provisions for orders that the Commission may make in relation 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.

[5] Section 319(3) further sets out the matters that the Commission must take into account in deciding whether to make an order:

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.

[6] In its application the Applicant has addressed each of the matters set out in s.319(3) and the application is supported by a statutory declaration of Mr Barry Plit, Chief Financial Officer for Bidvest Australia Limited.

[7] I will deal with each of the matters under s.319(3) of the Act.

Views of the new employer and affected employees

[8] The Applicant, being the new employer, supports the application. Mr Plit states that all employees have been informed by Mr Paul Moore, General Manager of the Applicant, of the application to have the Agreement cover the non-transferring employees. Employees were provided with a newsletter and tool box meetings were held to seek their views. Mr Plit states that he has been advised by Mr Moore that no employee express any view of the matter.

Whether any employees would be disadvantaged by the order

[9] The Applicant submits that no employees will be disadvantaged if the order sought is granted as they will continue to be paid their current wages and conditions which are more beneficial than the Award.

Expiry date of the agreement

[10] The Agreement was approved by the Commission on 1 July 2015 and has a nominal expiry of 1 July 2018. It has not passed its expiry date and has been renegotiated each year since the first enterprise agreement was made for the business in 2005.

Productivity

[11] The Applicant submits that the making of the order would not have a negative impact on the productivity of the workplace. It submits that the Agreement has been negotiated by the parties over a decade and is tailored to the worksite and better suited to the Applicant’s operations when compared to the Award. The Applicant submits that productivity issues may arise if the business had to apply different industrial instruments to the same group of employees over a prolonged period.

Economic disadvantage

[12] The Applicant submits that the making of the order will not incur any economic disadvantage to its business.

Degree of business synergy

[13] The Applicant submits that it is operating an identical operation to the old employer.

Public interest

[14] The Applicant submits that the making of the order sought will provide a platform to facilitate bargaining for a new enterprise agreement and provide certainty and consistency in relation to employment conditions.

Consideration

[15] I have taken into consideration the material provided by the Applicant in support of the application. I have also considered the matters set out in s.319(3) of the Act.

[16] I am satisfied that the order should be made. An order will be issued with this decision.

DEPUTY PRESIDENT

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