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
(AG2020/778)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 5 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Xiamen Pty Ltd 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 Xiamen Pty Ltd 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 2974
Decision Date: 5 JUNE 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Calstores Pty Ltd, trading as Calstores, seeking an order in relation to instruments covering a new employer and transferring employees. The dispute centred around the Xiamen Pty Ltd Enterprise Agreement and its applicability to the new employer and the employees being transferred. The Fair Work Commission was the tribunal tasked with resolving the matter.

The primary legal issue the Commission had to decide was whether the terms and conditions set out in the Xiamen Pty Ltd Enterprise Agreement should apply to the new employer and the employees being transferred. This required the Commission to consider the provisions of the Fair Work Act 2009 and the specific circumstances of the case, including the nature of the transfer and the terms of the enterprise agreement. The Commission also needed to assess whether the application for the order was justified under the relevant sections of the Act.

After considering the arguments presented by both parties, the Commission determined that the terms and conditions of the Xiamen Pty Ltd Enterprise Agreement should apply to the new employer and the employees being transferred. The Commission found that the application was justified and granted the order sought by Calstores. The reasoning was based on the applicability of the enterprise agreement to the new employer and the employees, and the need to ensure consistency and fairness in the treatment of the employees during the transfer.

The final orders made by the Commission were that the terms and conditions of the Xiamen Pty Ltd Enterprise Agreement would apply to the new employer and the transferring employees. This included the continuation of the existing employment arrangements, such as wages, hours of work, and other conditions of employment, as specified in the enterprise agreement. The Commission also directed that any disputes arising from the application of the agreement would be dealt with in accordance with the relevant provisions of the Fair Work Act.

Orders