Bounce Australia Pty Ltd T/A Bounceinc
[2022] FWC 184
•18 FEBRUARY 2022
| [2022] FWC 184 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Bounce Australia Pty Ltd T/A Bounceinc
(AG2021/9031)
| Amusement, events and recreation industry | |
| COMMISSIONER O'NEILL | MELBOURNE, 18 FEBRUARY 2022 |
Application for an order relating to instruments covering new employer and transferring employees.
On 16 December 2021, Bounce Australia Pty Ltd (Bounce) applied for an order under section 318 of the Act in the context of a merger between Bounce and Latitude Australia Holdings Pty Ltd (Latitude) which is to take place on or about 28 February 2022.
On or around this date, Bounce proposes to offer employment to approximately 180 employees of Latitude Melbourne Operations Pty Ltd, Latitude Adelaide Operations Pty Ltd and Latitude Perth Operations Pty Ltd (each being a subsidiary of Latitude and parties bound by the Latitude Enterprise Agreement 2015 (Latitude Agreement)).
Bounce seeks an order that the Latitude Agreement will not cover Bounce or the transferring employees of Latitude or its subsidiaries, and that the employees will instead be covered by the Bounceinc Enterprise Agreement 2021 (Bounce Agreement).
Consideration
On the basis of the material filed by Bounce, I am satisfied that upon the merger and acceptance of the offers of employment:
(a) there will be a transfer of business between Latitude and Bounce, pursuant to section 311 of the Act;
(b) the employees will be transferring employees in relation to the transfer of business; within the meaning of section 311(2); and
(c) the Latitude Agreement is a transferable instrument that would cover Bounce as the new employer and the transferring employees pursuant to ss.313 and 313(1)(a) of the Act.
In considering whether to make the order sought by Bounce I must take into account the matters set out in s.318(3) of the Act.
The views of the new employer and employees affected by the order
Bounce, as the new employer, is the Applicant and seeks the order sought.
Bounce was unable to take steps to ascertain the views of employees until the merger became unconditional in early February 2022. Bounce held a series of briefings with Latitude employees on 6 and 7 February 2022 and approximately 140 out of a total of 263 Latitude employees attended. All employees were informed of the proposed merger between Bounce and Latitude, the application made to the Commission, and the effects of the order being sought.
Following the briefings, all employees were emailed a letter detailing the changes on 7 February 2022, seeking questions and feedback by 14 February 2022.
Mr McMurray, People, Culture & Development Manager for Bounce submitted two statutory declarations attesting to this information and that the feedback received was overwhelmingly positive.
Whether any employees would be disadvantaged by the order
Bounce submits that the only employees who could be disadvantaged by the order are (i) junior employees who currently receive adult rates under the Latitude Agreement and who would be entitled to junior rates under the Bounce Agreement, and (ii) employees engaged by Bounce under an accredited traineeship.
Bounce has undertaken to ensure that these employees are no worse off by making offers of employment which guarantee such employees will receive the greater of the applicable rate of pay for their classification under the Bounce Agreement, or the rate of pay they currently receive under the Latitude Agreement.
I am satisfied that this undertaking will ensure that employees would not be disadvantaged by the order.
The nominal expiry date of the agreement
The Latitude Agreement has passed its nominal expiry date of 18 September 2019, whereas the Bounce Agreement came into operation on 29 December 2021.
Whether the transferable instrument would have a negative impact on productivity at Bounce
Bounce submits, and I accept, that it would be administratively burdensome to apply two sets of terms and conditions for transferring employees at the three venues they are engaged. Further, over time, there may be a more pronounced negative impact on productivity as employees would be performing the same work under different terms and conditions.
Whether Bounce would incur significant economic disadvantage by coverage of the Agreement
Bounce submits, and I am satisfied that this is a neutral consideration. The administrative ease of having a single agreement cover its employees is to be balanced against the lower rates of pay for some employees under the Latitude Agreement.
Degree of business synergy between the Latitude Agreement and the Bounce Agreement
I consider that there is limited synergy between the two agreements, with significant differences in key terms, even though they cover similar classifications of employees.
The public interest
Granting the application will result in a single, recently approved enterprise agreement covering all relevant Bounce employees, including the transferring employees. Absent countervailing considerations such as disadvantage to employees, this is in the public interest. Providing a singular set of wages and conditions aids both compliance and awareness of rights and obligations and reduces one source of potential workplace conflict.
I am not aware of any basis to consider that granting the application would be contrary to the public interest.
Conclusion
Having considered the application and further materials provided by the Applicant, and having regard to each of the factors above, on balance I am satisfied that it is appropriate to make an order in the terms sought.
An order will be issued separately to this decision.
In accordance with s.318(4) of the Act, the Order will operate from today’s date or the time when the transferring employees become employed by Bounce, whichever occurs later.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE416108 PR737841>
0
0
0