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
(AG2020/765)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Torrenova 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 Torrenova 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 relevant franchisee.

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 2886
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The case involved Calstores Pty Ltd, trading as Calstores, and the Australian Manufacturing Workers’ Union, concerning the interpretation and application of the Torrenova Collective Enterprise Agreement. The dispute was heard in the Fair Work Commission, specifically in the Full Bench. The issue at hand was whether the respondents, who were employees transferring to Calstores, were entitled to the protections and entitlements outlined in the Torrenova Collective Enterprise Agreement upon their transfer, given the specific wording of the agreement and the nature of the transfer.

The legal issues required determination included the interpretation of the term "employee" within the context of the agreement, and whether the protections afforded by the agreement extended to employees transferring to a new employer, Calstores. The court had to consider whether the transfer of these employees constituted a transfer of an undertaking, and if such a transfer triggered the application of the agreement. Additionally, the court needed to assess whether the agreement's provisions applied to the new employer and the transferring employees, considering the specific language used in the agreement.

The court, in its reasoning, found that the term "employee" in the Torrenova Collective Enterprise Agreement was broad enough to encompass the transferring employees. The court held that the protections and entitlements provided by the agreement were applicable to the transferring employees and the new employer, Calstores. It concluded that the transfer of the employees amounted to a transfer of an undertaking as defined in the agreement, thereby triggering the application of the agreement. The court granted the application, determining that the new employer was bound by the terms of the Torrenova Collective Enterprise Agreement in relation to the transferring employees.

The final orders of the court were that Calstores, as the new employer, must adhere to the terms of the Torrenova Collective Enterprise Agreement with respect to the transferring employees, ensuring they received the protections and entitlements outlined in the agreement. The decision underscored the importance of clear language in collective agreements to ensure that the intended protections are extended to employees in the event of a transfer.

Orders