Brookfield Rail Employment Pty Ltd

[2016] FWC 7241

[2016] FWC 7241

FAIR WORK COMMISSION

DECISION

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

Brookfield Rail Employment Pty Ltd
(AG2016/5191)

Rail industry
DEPUTY PRESIDENT BINET	PERTH, 10 OCTOBER 2016

Application for an order in relation to a transfer of business - instrument covering new employer and non-transferring employees - agreement.

[1] Brookfield Rail Employment Pty Ltd (BRE) has made an application (Application) for an order pursuant to section 319(1)(b) of the Fair Work Act 2009 (FW Act) that the John Holland Pty Ltd WA Rail Agreement 2015 (Agreement), cover employees of BRE not currently covered by the Agreement who perform, or are likely to perform, track maintenance work performed by employees covered by the Agreement.

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 October 2017.

Background to transfer of business

[3] Historically BRE outsourced its track maintenance work (Transferring Work) to John Holland Pty Ltd (John Holland). The Transferring Work was performed by employees of John Holland covered by the Agreement.

[4] Effective 15 August 2016, BRE ceased outsourcing the Transferring Work to John Holland and subsequently a number of employees of John Holland commenced employment with BRE (Transferring Employees), performing the same or substantially the same work as they previously performed when employed by John Holland. By virtue of section 313 of the FW Act the Transferring Employees remain covered by the Agreement.

[5] BRE proposes to engage non-transferring employees to perform the Transferring Work (Non-Transferring Employees).

Orders sought

[6] To ensure consistency in terms and conditions of employment for Transferring Employees and Non-Transferring Employees performing the same or substantially the same work, BRE seeks an order from the Fair Work Commission (Commission) that the Agreement covers these Non-Transferring Employees (Proposed Order).

[7] The Application was supported by a witness statement of Katrina Maillet (Maillet Witness Statement) and proposed consent orders (Draft Order) signed by a representative of both BRE and the Australian Rail, Tram and Bus Industry Union (RTBU) (of whom the Transferring Employees and Non-Transferring Employees are eligible to be members).

Relevant legislation

[8] Section 319(3) of the FW Act sets out considerations that the Commission must take into account in deciding whether to make an order pursuant to section 319(1)(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.”

Consideration

[9] In accordance with directions issued to parties on 9 September 2016 (Directions), on 16 September 2016, BRE filed the following with the Commission:

(a) a copy of the Agreement;

(b) evidence of service of the Application, the Maillet Witness Statement, the Draft Order and the Directions on the RTBU;

(c) evidence of service of the Application, the Maillet Witness Statement, the Draft Order and the Directions on the Non-Transferring Employees; and

(d) a signed statutory declaration of Kathryn Hall, Senior HR Advisor at BRE, confirming that the Directions had been complied with and that the Application had been served in accordance with Schedule 1 of the Fair Work Commission Rules 2013.

[10] The Directions contained an invitation for any Non-Transferring Employee who wished to be heard with respect to the Application, to contact the Commission by close of business on Friday 23 September 2016. No applications to be heard were received by any Non-Transferring Employee on or before that date.

Conclusion

[11] I am satisfied that:

(a) a ‘transfer of business’ has occurred as defined by section 311 of the FW Act;

(b) the Agreement is a ‘transferable instrument’ as defined by section 312 of the FW Act; and

(c) BRE is a ‘new employer’ for the purposes of section 319(2) of the FW Act and is therefore eligible to apply for the Proposed Order.

[12] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that BRE, the RTBU and the Transferring Employees do not object to the Proposed Order being issued.

[13] The submission of BRE that the Transferring Employees will not be disadvantaged in relation to their terms and conditions of employment if the Proposed Order is made because the terms of Transferable Instrument are substantially better than the relevant Award was not contested.

[14] The nominal expiry date of the Agreement, namely 31 October 2017, weighs in favour of the Proposed Order being granted because it allows both the Transferring Employees and the Non-Transferring Employees to jointly negotiate a new agreement within 12 months of the transmission of business occurring.

[15] By allowing for consistency in terms and conditions of employment between Transferring Employees and the Non-Transferring Employees performing the same or substantially the same work, the Proposed Order is likely to have a positive impact on workplace productivity.

[16] BRE has indicated that it would not incur significant economic disadvantage as a result of the Proposed Order being made.

[17] There is minimum business synergy between the Agreement and the relevant Award because of the differing terms and conditions.

[18] In light of the support by BRE and the RTBU for the Proposed Order being made, and in the absence of any request by a Transferring Employee to be heard, I am satisfied that it is in the public interest for the Proposed Order to be granted.

[19] In light of the above it is appropriate to make the order sought by BRE. An order to this effect (PR586039) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE418478  PR586257 >