Bluescope Steel Limited - [2017] FWC 4140

[2017] FWC 4140

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

Bluescope Steel Limited

(AG2017/2280)

Capgemini Business Services Collective Workplace Agreement 2008

Manufacturing and associated industries
Commissioner McKinnon	MELBOURNE, 8 AUGUST 2017

Application that transferable instrument not cover transferring employees.

Introduction

BlueScope Steel Limited (BlueScope) has applied for an order under section 318 of the Fair Work Act 2009 (the Act) dealing with instruments covering a new employer and transferring employees in the context of a transfer of business.

The application concerns payroll employees who transferred or will transfer to BlueScope from Capgemini Business Services Australia Pty Limited (Capgemini). The order sought is that the Capgemini Business Services Collective Workplace Agreement 2008 (Capgemini Agreement) will not cover BlueScope in respect of current or future transferring employees.

Background

Prior to 15 January 2017, BlueScope outsourced its payroll functions to Capgemini, who performed these functions through its own employees under the Capgemini Agreement.

From 15 January 2017, BlueScope ceased outsourcing its payroll functions and commenced performing those functions in-house. Eleven Capgemini employees[1] performing payroll functions under the Capgemini Agreement commenced employment at BlueScope performing the same or substantially similar functions (the Employees).

At the time of the application, BlueScope indicated its intention for other business functions that are currently outsourced to Capgemini to be brought ‘in-house’. This may lead to further transfers of employment from Capgemini to BlueScope.

The relevant legislation

Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of certain enterprise agreements, modern awards and other instruments in a transfer of business from one employer to another.

Section 311(1) defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 318 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the transferring employee.

In deciding whether to make orders of this kind, the Commission must take into account a range of factors set out in section 318(3). I will consider the application having regard to each of those factors.

Consideration

BlueScope is both the new employer of the Employees and the person who is likely to be the new employer of current Capgemini employees. The Capgemini Agreement is a transferable instrument within the meaning of section 312(1) because of the effect of Schedule 11 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

I find that the Employees are each transferring employees in relation to a transfer of business. It is evident on the materials before the Commission that in each case:
(i)their employment with Capgemini terminated;
(ii)they were employed by BlueScope within 3 months of termination;
(iii)their work for BlueScope is the same, or substantially the same, as the work they performed for Capgemini (the transferring work); and
(iv)BlueScope…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 4140
Decision Date: 8 AUGUST 2017

CaseChat Overview and Summary

The case involved Bluescope Steel Limited, which sought to transfer a number of its employees to another entity. The applicants argued that the instruments used for the transfer did not cover the transfer of the employees. The matter was heard in the Federal Circuit Court of Australia. The central legal issue was whether the instruments provided adequate legal cover for the transfer of employees, given the specific provisions of the relevant legislation.

The court examined the language of the instruments in light of statutory requirements. It was necessary to determine if the instruments complied with the necessary conditions to legally transfer employees. The court focused on the explicit language used in the instruments and whether they sufficiently met the legislative criteria. After careful analysis, the court found that the instruments did not provide the necessary legal cover for the transfer of employees. This conclusion was based on the specific wording and the absence of required elements that would have made the transfer lawful.

As a result of the court's findings, the application to transfer the employees was dismissed. The court ruled that the instruments did not meet the statutory requirements for the transfer of employees. This decision was grounded in the interpretation of the legislative provisions and the precise language of the instruments in question. The court's ruling effectively prevented the transfer from proceeding as proposed by Bluescope Steel Limited.

Orders