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
(AG2020/748)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – BHLP Pty Ltd Collective Enterprise Agreement 2014 – 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 BHLP Pty Ltd Collective Enterprise Agreement 2014 (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.

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Details

Case: [2020] FWC 2856
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Calstores Pty Ltd, trading as Calstores, which sought an order concerning instruments that covered a new employer and transferring employees. The application related to the BHLP Pty Ltd Collective Enterprise Agreement 2014. The dispute arose when Calstores acquired certain business operations from BHLP Pty Ltd, and the employees affected by the transfer were governed by the aforementioned agreement.

The primary legal issues that the Commission had to address were whether the new employer, Calstores, was bound by the existing enterprise agreement and whether the agreement applied to the transferring employees. The central question was whether the terms of the agreement could be extended to cover the new employer and employees under the provisions of the Fair Work Act 2009. The Commission needed to consider the applicability of section 172 of the Act, which allows for the transfer of employees and associated agreements under specific conditions.

In its decision, the Commission found that the terms of the BHLP Pty Ltd Collective Enterprise Agreement 2014 could indeed be extended to cover Calstores as the new employer and the transferring employees. The Commission reasoned that the transfer of business operations constituted a transfer of an undertaking within the meaning of the Act, and the agreement's terms were sufficiently clear and comprehensive to bind the new employer. Furthermore, the Commission determined that the agreement provided adequate protections for the transferring employees, ensuring their continued employment under terms consistent with those previously agreed upon with BHLP Pty Ltd. Consequently, the application was granted, and the agreement was extended to cover the new employer and employees.

Orders