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
(AG2020/767)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – WLY Enterprises Pty Ltd Enterprise Agreement 2012 – 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 WLY Enterprises Pty Ltd Enterprise Agreement 2012 (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 2893
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The case involved Calstores Pty Ltd, trading as Calstores, and WLY Enterprises Pty Ltd, with the dispute centring around the application for an order relating to instruments covering a new employer and transferring employees. The matter was heard in the Fair Work Commission (FWC). The Commission was tasked with deciding whether the instruments covering the transfer of employees from WLY Enterprises to Calstores should be altered or maintained.

The central legal issue was whether the application for an order to modify the instruments governing the transfer of employees from WLY Enterprises to Calstores should be granted. The applicant argued that changes were necessary to accurately reflect the terms of the WLY Enterprises Pty Ltd Enterprise Agreement 2012. The FWC had to determine if the proposed changes would appropriately address the terms of the agreement and the rights of the employees under the agreement.

The FWC found that the application for an order to modify the instruments should be granted. The Commission considered that the changes proposed by Calstores were necessary to accurately reflect the terms of the WLY Enterprises Pty Ltd Enterprise Agreement 2012. The FWC concluded that the proposed modifications would not adversely affect the rights of the employees and would ensure that the instruments governing the transfer of employees were in compliance with the relevant enterprise agreement. As a result, the application was successful, and the instruments were modified accordingly.

The final orders of the FWC granted the application for an order to modify the instruments covering the transfer of employees from WLY Enterprises to Calstores. The modifications were intended to ensure that the instruments accurately reflected the terms of the WLY Enterprises Pty Ltd Enterprise Agreement 2012 and did not adversely affect the rights of the employees.

Orders