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
(AG2020/761)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Caltex Subiaco Collective Enterprise 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 Caltex Subiaco Collective Enterprise 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 was terminated with the…

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 2877
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The case before the Fair Work Commission involved Calstores Pty Ltd, trading as Calstores, and several employees. The dispute pertained to the application for an order regarding instruments that covered a new employer and transferring employees, specifically in relation to the Caltex Subiaco Collective Enterprise Agreement. The Fair Work Commission was tasked with adjudicating on this matter.

The primary legal issues that arose required the court to determine whether the new employer, Calstores, was bound by the terms of the existing collective enterprise agreement. This involved interpreting the agreement's provisions and assessing whether the employees transferring to Calstores were covered by the agreement's terms. The court had to consider the applicability of the agreement in light of the specific circumstances of the transfer of business under the Fair Work Act 2009.

The Fair Work Commission concluded that Calstores was indeed bound by the terms of the Caltex Subiaco Collective Enterprise Agreement, given that the transfer of business involved a substantial part of the business, and the employees were effectively transferring under the same conditions as before. The court held that the continuity of employment and the preservation of the existing terms and conditions of employment were essential in this context. Consequently, the application for an order was granted, ensuring that the transferring employees would continue to be covered by the agreement.

As a result of this decision, the Fair Work Commission issued an order that mandated Calstores to adhere to the terms and conditions outlined in the Caltex Subiaco Collective Enterprise Agreement for the transferring employees. This order was made to safeguard the employees' rights and ensure a smooth transition under the existing agreement.

Orders