Busways R1 Pty Ltd T/A Busways

[2023] FWC 2397

[2023] FWC 2397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Busways R1 Pty Ltd T/A Busways

(AG2023/3015)

BUSWAYS GROUP, TRANSPORT WORKERS’ UNION OF AUSTRALIA AND DRIVERS ENTERPRISE AGREEMENT 2022
DEPUTY PRESIDENT CROSS	SYDNEY, 19 SEPTEMBER 2023

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

1. Busways Region 1 Pty Ltd (the Applicant), is a related entity of Busways Group (the Holding Company). Busways on 10 December 2023 will transfer all of the employees covered by the Busways Group, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2022 (the Agreement) to the Applicant, and the Applicant will become the new employer.

1. The Applicant has sought an order that the Agreement will cover non-transferring employees employed by Busways R1 Pty Ltd on or after 10 December 2023 to perform work covered by the Agreement.

1. The Transport Workers Union (TWU) provided an email in support of the Application on 18 September 2023, which relevantly stated:

Dear Associate,

The TWU does not object to and supports Busway's application.

We do not intend to file substantive material unless requested to do so by the Commission.

Regards,

1. Section 319(3) provides the Commission to consider the following matters to make an Order.

(a) The views of the employer and employees affected by the order

1. The Applicant is  the  new  employer  and  does  not  currently  employ  any  person  that  has  not transferred from Holding Company.

1. I am satisfied that the views of the employees affected by the order was sought through sending  an email  informing  the  employees  of  the  changes on 31 August 2023.

(b) Whether any employees would be disadvantaged

1. I am satisfied that the employees affected would not be disadvantaged by the order sought. Any non-transferring employees would otherwise be covered under the Passenger Vehicle Transportation Award 2020 (the Award). In Mr Gibson’s witness statement, he asserted the following:

16. I have reviewed the terms of the Agreement against the Passenger Vehicle Transportation Award 2020 (the Award) and believe that the terms and conditions provided for in the Agreement are significantly more beneficial to employees compared to the terms contained in the Award.

1. I am therefore satisfied that the Agreement would ensure that the employees would be better off compared to the award.

(c) The nominal expiry date of the Agreement

1. The nominal expiry date of the Agreement is 30 June 2026. This is a neutral consideration.

(d) Whether the transferrable instrument would have a negative impact on the productivity of the new employer’s worksite

1. The Applicant has submitted the transferrable instrument would not have a negative impact on the productivity of their workplace. I accept their submissions.

(e) Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

1. The Applicant outlined that the Order would not incur a significant economic disadvantage. I accept their submissions.

(f) The degree of business synergy between the transferrable instrument and any workplace instrument that already covers the new employer,

1. The Applicant submitted that while it does not currently have an existing workforce nor a registered industrial instrument, the Agreement will be transferring when the transfer of employment takes effect. For this reason, the Applicant submits that applying the Award and the Agreement is a more complex exercise than applying the Agreement, and having to apply the Award alongside the Agreement to employees performing the same work would reduce synergy within the business.

1. The Applicant submits that if the Order is granted it will confirm a single framework of regulation that has been negotiated and approved in the same general context in which it has applied and will continue to apply. I am satisfied that Busways R1 Pty Ltd have established that the transferrable instrument would allow for greater business synergy.

(g) Public interest

1. There are no public interest considerations of concern

Conclusion

1. I am satisfied that Busways R1 Pty Ltd has sufficiently addressed the matters in s.319(3) of the Act.

1. Pursuant to s.319(1)(b) of the Act, the Busways Group, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2022 will cover any non-transferring employees of Busways R1 Pty Ltd who perform, or are likely to perform, the transferring work.

1. Pursuant tos.319(4)(b) of the Act, the Order in relation to each of the non-transferring employees will come into effect on the later of:

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE517896  PR766312>