Bosch Automotive Service Solutions Pty Ltd

[2014] FWC 2188

[2014] FWC 2188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Bosch Automotive Service Solutions Pty Ltd
(AG2014/4094)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 3 APRIL 2014

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

[1] The following is an edited version of the text of the ex tempore decision delivered by me at the conclusion of proceedings on 28 March 2014.

[2] Robert Bosch Australia Pty Ltd (Bosch) and Bosch Automotive Services Solutions Pty Ltd (Applicant) are associated entities within the meaning of the Corporations Act 2001. Peter Magill, Shaun Dale, Stephen Separovich-Cook, John Daly, Doug Hodgson, Simon Elvidge, Jason Tichelaar, Stephen Dawes, Trenton Baker and Darryll Cavanagh (Transferring Employees), are currently employees of Bosch to whom conditional offers of employment with the Applicant have been made.

[3] The Transferring Employees’ employment with Bosch is covered by the Robert Bosch Australia Pty Ltd 2013 Enterprise Agreement (Agreement). The conditional offers of employment are made on the basis that employment with the Applicant will proceed if the Fair Work Commission (Commission) makes orders that are sought by this application. Pursuant to the conditional offers of employment, the work of the Transferring Employees that will be performed by them with the Applicant is or appears to be the same, or substantially the same as the work that the Transferring Employees are currently performing in their employment with Bosch.

[4] The Applicant has applied for orders under s. 318(1) of the Fair Work Act 2009 (Act) that the Agreement, which is a transferable instrument under the Act, which would or would likely cover the Transferring Employees because of s. 313(1)(a), will not cover the Applicant and the Transferring Employees. The Applicant has standing to make the application because it is likely to be the new employer of the Transferring Employees as is evident in the conditional offers of employment that have been made. If, as is the apparent case, the Transferring Employees cease employment with Bosch and commence employment with the Applicant immediately thereafter, there will be a transfer of business within the meaning of that term under the Act, because the work to be performed will be substantially the same and there is a connection within the meaning of s. 311(6) between Bosch and the Applicant.

[5] The application that has been made is supported by the Transferring Employees which is evident from the affidavit material that has been filed by the Applicant and marked as exhibits A2 through to A11 respectively. The application is not opposed by each relevant employee organisation that is covered by the Agreement or having capacity under their rules to represent the industrial interests of the Transferring Employees. The fact that the application is not opposed is evidenced by correspondence sent either to my Chambers or to the Applicant’s representative by various emails marked as exhibits A12 through to A16 respectively.

[6] The discretion to make the orders sought by the Applicant will only be exercised after taking into account the matters set out in s. 318 (3) of the Act. The views of the Applicant and the Transferring Employees are, in my view, clear. Each supports the making of the order. In particular each Transferring Employee has deposed to the fact that the proposed transfer is part of a business plan to integrate a particular division of the Bosch business into the Applicant’s business. As a consequence of the integration, conditional offers of employment have been made to each of the employees. The terms and conditions of the conditional offer of employment and the similarities and differences between the terms and conditions of employment have been explained to each of the Transferring Employees. The conditional offers of employment have been accepted and consequently there is support for the application.

[7] It would appear on the face of the material that no other employee would be disadvantaged by any order that is made in relation to their particular terms and conditions of employment. Many of the terms and conditions of employment that are set out in the conditional offers of employment are substantially the same or comparable to the terms and conditions of employment set out in the Agreement. In some areas the conditional offer of employment contains terms that are more beneficial when compared to employment under the Agreement.

[8] Consequently, I am satisfied that overall the terms and conditions contained in the conditional offer of employment are comparable to the terms and conditions of employment under the Agreement. The Transferring Employees will not be disadvantaged in their employment with the Applicant when the terms and conditions set in the conditional offer of employment are viewed on an overall basis and compared to employment under the Agreement.

[9] Moreover, each Transferring Employee has agreed to accept the terms and conditions set out in the conditional offer of employment that has been made to them by the Applicant.

[10] As to the matters that are set out in paragraphs (c) to (f) of subsection (3) of s. 318, although the Applicant has said that there would be significant financial detriment if the Agreement were to apply, I disagree. I regard the matters set out those paragraphs for the purposes of determining this application as essentially neutral.

[11] I am also satisfied that it is not against the public interest that the orders sought by the Applicant, which are supported by the Transferring Employees and not opposed by relevant organisations, to be made. Consequently I will make orders that the Agreement will not cover the Applicant and each Transferring Employee in relation to his employment with the Applicant. The orders that I will make will come into operation, in relation to each Transferring Employee, on the date that that Transferring Employee commences employment with the Applicant.

[12] Orders giving effect to this decision have been issued separately in PR549096, PR549100, PR549102, PR549103, PR549105, PR549107, PR549108, PR549093, PR549073 PR549106.

DEPUTY PRESIDENT

Appearances:

R. Soh for the applicant

Hearing details:

2014.

Melbourne.

28 March.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549239>