Brefni Contracting Pty Ltd T/A Brefni Contracting

[2016] FWC 3883

[2016] FWC 3883

FAIR WORK COMMISSION

DECISION

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

Brefni Contracting Pty Ltd T/A Brefni Contracting
(AG2016/1350)

BREFNI EXCAVATION AND EARTHMOVING PTY LTD ENTERPRISE AGREEMENT 2013
(ODN AG2013/1349)  [AE402291]

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 16 JUNE 2016

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

[1] On 27 May 2016 an application was lodged by Brefni Contracting Pty Ltd T/A Brefni Contracting (Brefni Contracting) for an order, pursuant to s.319 of the Fair Work Act 2009 (the Act) which relates to an instrument covering a new employer and non-transferring employees.

[2] The transferrable instrument referred to is the Brefni Excavation and Earthmoving Pty Ltd Enterprise Agreement 2013 (the Agreement)[AE402291]. The Agreement was approved by Commissioner MacDonald on 11 July 2013 (2013] FWCA 4552. It has a nominal expiry date of 18 July 2017.

Background

[3] The application was lodged by BBW Lawyers on behalf of Brefni Contracting. It is accompanied by a Statutory Declaration by Tom Brady, a director of Brefni Excavation and Earthmoving Pty Ltd (Brefni Excavation) and Brefni Contracting.

[4] It appears that the application arises from a decision to restructure Brefni Excavation into two components, namely, Brefni Contracting and Brefni Maintenance Pty Ltd T/A Brefni Maintenance (Brefni Maintenance).

[5] A mirror application has been lodged with respect to Brefni Maintenance, which is dealt with in a separate decision. Current employees will be transferred to the two new entities with full continuity of entitlements.

[6] Relevant non-transferring employees would otherwise be covered by the Building and Construction Industry General On-Site Award 2010 [MA000020].

[7] Brefni Contracting seeks an order, pursuant to s.319(b) that the Agreement will cover prospective non-transferring employees who perform, or are likely to perform, transferring work for Brefni Contracting.

[8] Given the material that has been lodged, I have decided that the matter can be dealt with on the papers.

The Relevant Legislation

[9] Sections 317 and 319 relevantly provide:

“317 FWC may make orders in relation to a transfer of business This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.”

“319 Orders relating 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.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a)  the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b)  the day on which the order is made.”

Why the s.319 Order should be made

[10] In deciding whether to make the order pursuant to s.319 the Commission must take into account all of the matters set out in s.319(3) above.

[11] The application and accompanying statutory declaration addresses each of these matters.

[12] In summary, Brefni Contracting submits that the section has been complied with and the order should granted because:

● The new employer supports it because otherwise there might be two separate industrial instruments covering employees performing the same/similar work;

● Employees will not be disadvantaged;

● The Agreement expires in July 2017;

● The order will not have a negative impact on productivity;

● The order will not cause the new employer economic disadvantage

● The order will be conducive to business synergy;

● The order is in the public interest.

Conclusion

[13] In view of the material provided by Brefni Contracting, I am satisfied that the order pursuant to s.319 should be made. The Order (PR581599) will operate from 16 June 2016.

DEPUTY PRESIDENT

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<Price code A, AE402291  PR581605 >