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
(AG2020/750)

COMMISSIONER HUNT

BRISBANE, 5 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Collective Australian Workplace 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 Collective Australian Workplace 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 choose to accept offers of employment with Calstores are to be engaged by Calstores as customer service attendants, and will be engaged to perform work which if 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 is terminated with the relevant…

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 2858
Decision Date: 5 JUNE 2020

CaseChat Overview and Summary

The matter involves Calstores Pty Ltd, trading as Calstores, and its former employees who have transferred to a new employer. The dispute pertains to the interpretation and enforcement of a Collective Australian Workplace Agreement (CAWA) in the context of employee transfers. The case was heard in the Fair Work Commission (FWC). The central legal issues the court had to address were whether the CAWA remained applicable to the employees who transferred to the new employer and, if so, what obligations the new employer had under the agreement.

The court examined the terms of the CAWA and the specific provisions related to employee transfers. It considered the intent of the agreement and whether the transfer of employees should trigger a new agreement with the new employer. The court also looked at the implications of the CAWA on the new employer's obligations and the rights of the transferred employees. Ultimately, the court found that the CAWA did apply to the transferred employees, and that the new employer was bound by its terms. The FWC concluded that the new employer had to honour the terms of the existing CAWA until it was replaced by a new agreement or until the CAWA expired.

The court granted the application, requiring the new employer to comply with the terms of the CAWA. The decision emphasised the importance of clear communication and agreement between the parties involved in employee transfers to ensure that employees' rights and obligations are protected. The FWC also highlighted the need for businesses to be aware of their responsibilities under existing agreements when acquiring employees from other employers. The court's decision provided clarity on the enforcement of CAWAs in the context of employee transfers and underscored the importance of adhering to existing agreements to avoid potential disputes.

Orders