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
(AG2020/747)

Retail industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Banners WA Pty Ltd Employee Collective Agreement – 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 Banners WA Pty Ltd Employee Collective Agreement (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 that at the time of each respective acquisition the employment of the transferring customer service attendant…

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.

Keep reading for free

Create a free CaseChat account to read Calstores Pty Ltd T/A Calstores and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 2855
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

Calstores Pty Ltd, trading as Calstores, sought an order from the Fair Work Commission relating to instruments covering a new employer and transferring employees. The application was in respect of employees who were transferred to the respondent, Banners WA Pty Ltd, from the applicant, Calstores Pty Ltd. The dispute arose from the transfer of employees and the applicability of certain terms and conditions from the Banners WA Pty Ltd Employee Collective Agreement.

The primary legal issues before the commission were whether the employees transferring from Calstores to Banners were to be considered new employees under the collective agreement and, if so, what terms and conditions should apply to them. The applicant argued that the employees should be treated as new employees with no continuity of service, while the respondent contended that the employees should retain their existing terms and conditions of employment as per the collective agreement. The commission had to determine the appropriate application of the collective agreement to the transferring employees.

The commission concluded that the employees transferring from Calstores to Banners should indeed be considered as new employees under the collective agreement. However, the commission also found that these employees should not be subjected to the less favourable terms and conditions that might apply to new employees under the agreement. Instead, the employees should retain their existing terms and conditions as per the collective agreement. This decision was based on the principle of maintaining continuity of service and ensuring fair treatment of the employees during the transition. The commission granted the application accordingly.

The commission made an order that the employees transferring from Calstores to Banners should be treated as new employees under the Banners WA Pty Ltd Employee Collective Agreement. However, they were to retain their existing terms and conditions of employment as per the agreement. This decision aimed to balance the interests of both the employer and the employees, ensuring fairness and continuity in the employment relationship.

Orders