Brightlite Nominees Pty Ltd T/A Beacon Lighting

[2010] FWA 3361

[2010] FWA 3361

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Brightlite Nominees Pty Ltd T/A Beacon Lighting
(AG2010/5279)

Storage services
COMMISSIONER GOOLEY	MELBOURNE, 29 APRIL 2010

Instruments covering new employer and transferring employees in agreements.

[1] On 1 February 2010 Brightlite Nominees Pty Ltd made an application that:

1. pursuant to section 318(1)(a) of the Fair Work Act 2009 (the Act) that a transferable instrument that would cover the applicant and a transferring employee because of section 313(1)(a) of the Act, does not cover the applicant and the transferring employees; and

2. pursuant to section 318(1)(b) of the Act that the Beacon Lighting (Western Australia and South Australia) Certified Agreement 2005 (the Agreement) that covers the applicant covers the transferring employees.

Background

[2] On 3 February 2010 there was a transfer of business from Phoenix PMG Pty Ltd (the old employer) to the applicant (the new employer) and employees of the old employer were employed by the new employer and were transferring employees within the meaning of section 311(2) of the Act.

[3] The employer and non transferring employees are bound by the Beacon Lighting (Western Australia and South Australia) Certified Agreement 2005 which was varied and extended by Fair Work Australia on 5 November 2009. 1

[4] The matter was listed for hearing on 25 February 2010 and the applicant was instructed to post a copy of the application and the notice of listing on all staff or employee notice boards advising the employees that they could appear before Fair Work Australia and make submissions on the matters set out in section 318(3) of the Act.

[5] On 24 February 2010 the hearing was cancelled. As a consequence on 18 March 2010 I sought from the applicant advice on what steps it had taken to advise the employees of the application and the implications of the application.

[6] On 24 March 2010 an affidavit of Elizabeth Mikkelsen the Human Resources Manager for the applicant was filed along with a witness statement of Nathan Dias a transferring employee of the applicant.

[7] The matter was listed for hearing on 14 April 2010. Arrangements were put in place to enable any person who wished to make submissions to appear by phone or video link but no person appeared at the hearing to oppose the application. Submissions were made in support of the application. I sought and was provided additional submissions about the differences between the modern award and the agreement. The additional information was provided on 16 April 2010.

The legislation

[8] Section 318 of the FW Act provides that:

“318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA 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 transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Whomay apply for an order

(2) FWA 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 transferring employee, or an employee who is likely to be a transferring employee;

(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 FWA must take into account

(3) In deciding whether to make the order, FWA 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.”

Findings

[9] The applicant is the new employer and is able to make the application. The application seeks orders that the Beacon Lighting (Western Australia and South Australia) Certified Agreement 2005 (the Agreement) apply to the transferring employees.

[10] The transferring employees who would, but for this application, be covered by the General Retail Industry Award 2010 (the Award) have not opposed the making of this order and the witness statement of Mr Dias, a transferring employee supports the making of the orders.

[11] The Agreement was varied and extended by Order of Commissioner Whelan on 5 November 2009 and in doing so it was assessed as passing the no disadvantage test. A comparison of the Agreement and the Award supports the conclusion that the application of the Agreement to the transferring employees will not disadvantage the transferring employees.

[12] The nominal expiry date of the Agreement is 7 September 2012.

[13] Ms Mikkelsen’s evidence was that the transferable instrument will have a negative impact on the productivity.

[14] In her evidence she says that compliance with the Award for the transferring employees would cause the employer economic disadvantage as a consequence of the administrative burden in administering multiple industrial instruments for a small number of employees.

[15] She further gave evidence that there is little synergy between the Award and the business and the Agreement provides a simple wage structure more suited to its business needs and the employees will have access to the incentive scheme provided under the Agreement as well as the structured employer funding workplace training.

[16] No submissions were made that the making of the orders is contrary to the public interest.

[17] I do not accept that the application of the Award would cause the employer to incur significant economic disadvantage. However that is but one of the factors I am required to take into account. I accept Ms Mikklesen’s evidence on the impact on the employer and the employees of the application.

Conclusion

[18] I have taken into account the submissions and evidence and, having regard to the criteria in section 318, I will make the following orders:

1. the General Retail Industry Award 2010 (the Award) the transferable instrument that would cover the applicant and a transferring employee because of section 313(1)(a) of the Act does not cover the applicant and transferring employees: and

2. The Beacon Lighting (Western Australia and South Australia) Certified Agreement 2005 that covers the applicant covers the transferring employees

3. The date of the order 19 April 2010.

COMMISSIONER

Appearances:

K Sweatman with E Mikkelsen for Brightlite Nominees Pty Ltd

Hearing details:

2010.

Melbourne:

April 14.

 1   AG839112 PR990598

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<Price code C, AG839109  PR996539>