C2S Pty Ltd

[2014] FWC 6050

[2014] FWC 6050

FAIR WORK COMMISSION

DECISION

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

C2S Pty Ltd
(C2014/5645)

Real estate industry
COMMISSIONER SPENCER	BRISBANE, 2 SEPTEMBER 2014

Application for an Order re instruments covering new employer and non-transferring employees in agreements.

[1] C2S Pty Ltd (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an Order that the Ray White Toowoomba Employee Collective Agreement 2009 (the Agreement) cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work.

[2] In accordance with s.311(1) of the Act, a transfer of business has occurred. The Applicant purchased the business of Ray White Toowoomba on 1 July 2014 from Memento Vivere Pty Ltd. The Applicant has employed 32 of the employees (transferring employees) previously employed by Memento Vivere Pty Ltd. The transferring employees are covered by the Agreement. The Applicant submitted that C2S Pty Ltd will also employ new employees (non-transferring employees) from time to time and seeks Orders that all employees are covered by one industrial instrument, the Agreement. If the Orders are not made, any new (non-transferring) employees would be covered by the Real Estate Industry Award 2010 (The Award).

Relevant legislation

[3] Section 319 of the Act provides:

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.”

Summary of Applicant’s submissions

[4] The Applicant filed a statutory declaration of the director of C2S Pty Ltd and submissions in relation to s.319(3) of the Act.

[5] The Applicant submitted that as non-transferring employees will be performing the transferring work, alongside the transferring employees, it would be preferable that all employees are governed by the one industrial instrument.

[6] The Applicant submitted that there are currently no employees who will be affected by the Order who could give their views to the Commission. The Applicant submitted that the non-transferring employees will be better off under the Agreement than the Award and provided a table of comparison to that effect.

[7] The Agreement has a nominal expiry date of 11 September 2014.

[8] As to whether the transferrable instrument will have a negative impact upon the business, the Applicant submitted that the Agreement will have a positive effect on productivity, as the business will have one industrial instrument which will reduce administrative and operational inefficiencies.

[9] The Applicant submitted that no economic disadvantage would be suffered by the effect of the Agreement covering the Applicant as it is already paying 32 employees pursuant to the Agreement.

[10] The Applicant submitted that the modern award which would otherwise cover it and the non-transferring employees has little business synergy with the Agreement.

[11] The Applicant submitted that the making of the Order would not offend the public interest.

Consideration

[12] I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.

[13] The Order, PR554969, will issue with this decision and take effect from 2 September 2014.

COMMISSIONER

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<Price code A, AE871447  PR554972 >