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
(AG2020/751)

Retail industry
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Fine-Enterprises Pty Ltd ATFT Justin Soo Seng Teh Family Trust Enterprise Agreement 1004 – 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 Fine-Enterprises Pty Ltd ATFT Justin Soo Seng Teh Family Trust Enterprise Agreement 1004 (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…

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 2859
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

The case involves Calstores Pty Ltd, trading as Calstores, and the Fine-Enterprises Pty Ltd ATFT Justin Soo Seng Teh Family Trust, with the dispute centred around instruments covering a new employer and the transfer of employees. The matter was heard by the Fair Work Commission. The legal issues at hand pertained to the interpretation and application of the relevant enterprise agreement, specifically focusing on the provisions that govern the transfer of employees and the obligations of the new employer. The primary question was whether the new employer was bound by the existing enterprise agreement and, if so, to what extent.

The Commission examined the language of the enterprise agreement to determine the obligations of the new employer upon the transfer of employees. It was determined that the agreement explicitly outlined the rights and obligations of the parties involved in such a transfer. The Commission found that the new employer was indeed bound by the existing agreement and had to honour the terms and conditions applicable to the transferred employees. The court's reasoning was grounded in the literal interpretation of the agreement, which clearly specified the continuity of the terms for the employees who were transferred to the new employer.

The outcome of the case was a favourable decision for Calstores, with the Commission granting the application. The new employer was ordered to adhere to the provisions of the existing enterprise agreement, ensuring that the transferred employees' rights and conditions of employment were maintained. This decision reinforces the importance of clear and precise language in enterprise agreements to protect the interests of employees during transitions between employers. The final orders mandated that the new employer comply with the terms of the enterprise agreement in relation to the transferred employees, thereby preserving their existing employment conditions.

Orders