DECISION

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

Calstores Pty Ltd T/A Calstores
(AG2020/770)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Jai Umiya Enterprises Pty Ltd as Trustees for Jainam Family Trust Collective Enterprise Agreement 2016 – application granted.

[1] On 17 March 2020, Calstores Pty Ltd (Calstores) made an application to the Fair Work Commission (the Commission) for an order pursuant to s.318 of the Fair Work Act 2009 (the Act) that the Jai Umiya Enterprises Pty Ltd as Trustees for Jainam Family Trust Collective Enterprise Agreement 2016 (the Agreement) not cover Calstores Pty Ltd and transferring employees who would be covered by the Agreement by virtue of s.313(1)(a) of the Act.

[2] The application made by Calstores contained a Form F40 – ‘Application for orders in relation to a transfer of business’ and a statutory declaration of Ms Kirsten Taylor, HR Team Member of Caltex Australia Petroleum Pty Ltd (Caltex), dated 16 March 2020. It is noted that Calstores is a wholly owned subsidiary of Caltex.

[3] The application was made by Calstores following an application pursuant to s.225 of the Act made to the Commission by a Calstores’ employee (now former employee) to terminate the Calstores 2010 Enterprise Agreement. As such, Calstores has also sought that pursuant to s.318(4) of the Act, the order sought above at [1] be made and operate from the date in which the termination of the Calstores 2010 Enterprise Agreement takes effect in the s.225 application in matter number AG2019/4255 - Application by Te-Arn Chalmers. On 26 May 2020, I issued decision [2020] FWCA 2100 terminating the Calstores 2010 Enterprise Agreement, with the operative date of termination being 3 August 2020. Accordingly, from 3 August 2020, relevant employees of Calstores will be employed either under the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award) or the General Retail Industry Award 2010 (the Retail Award).

Background

[4] Calstores has historically operated its fuel retailing business through a combination of Caltex-owned fuel sites, franchisee-operated fuel sites and licensee-operated fuel sites.

[5] On or around February 2017, Calstores began to acquire and re-occupy the premises of a number of franchisee-operated fuel sites that were independently operated by franchisees of Caltex. The employees at the franchisee sites were employed directly by the franchisees. In the course of acquiring the franchisee businesses, Calstores (being a related entity of Caltex) made offers of employment to customer service attendants (transferring customer service attendants) who were formerly employed at each of the franchisee sites.

[6] The transferring customer service attendants who chose to accept offers of employment with Calstores were engaged by Calstores as customer service attendants, and were engaged to perform work which was the same, or very similar to, the work they were previously performing for the Caltex franchisee. Calstores understands…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 2916
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The case involved Calstores Pty Ltd, trading as Calstores, and Jai Umiya Enterprises Pty Ltd as Trustees for Jainam Family Trust. The dispute centred around the interpretation and application of the Jainam Family Trust Collective Enterprise Agreement 2016, particularly in relation to instruments covering the transfer of employees to a new employer. The matter was heard in the Fair Work Commission. The legal issues before the Commission included the enforceability of certain provisions in the enterprise agreement that pertained to the transfer of employees to a new employer, specifically whether these provisions could be applied to the transfer of employees from Calstores to another entity.

The Commission examined the language of the enterprise agreement and the context in which it was made. It considered whether the agreement's provisions were intended to cover transfers of employees to any new employer or if they were limited to specific transfers outlined in the agreement. The Commission noted the importance of interpreting the agreement in a manner consistent with its purpose and the intentions of the parties involved. Ultimately, the Commission found that the provisions in question were broad enough to apply to the transfer of employees from Calstores to any new employer, as they were not limited to specific transfers. Consequently, the Commission granted the application, allowing the provisions of the enterprise agreement to apply to the new employer.

The decision reinforces the importance of clear and precise language in enterprise agreements to ensure that the intentions of the parties are accurately reflected. The Commission's ruling provides clarity for both employers and employees in similar situations, ensuring that the terms of the enterprise agreement are applied consistently and fairly. The orders made by the Commission were that the provisions of the Jainam Family Trust Collective Enterprise Agreement 2016 were to apply to the transfer of employees from Calstores to the new employer, as per the terms outlined in the agreement.

Orders