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
(AG2020/764)

Retail industry
COMMISSIONER HUNT	BRISBANE, 5 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – Racrob Pty Ltd Collective Agreement 2008– 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 Racrob Pty Ltd Collective Agreement 2008 (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…

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 2884
Decision Date: 5 JUNE 2020

CaseChat Overview and Summary

In the matter of Calstores Pty Ltd trading as Calstores, the dispute arose in relation to instruments covering a new employer and transferring employees, specifically concerning the Racrob Pty Ltd Collective Agreement 2008. The Fair Work Commission heard the case, as it involved the interpretation and application of the Fair Work Act 2009. The applicant, Calstores, sought an order to ensure the continuity of certain employment terms and conditions for employees transferring from Racrob Pty Ltd.

The legal issues before the Commission included the interpretation of the Fair Work Act 2009 and the applicability of the collective agreement to the new employer and transferring employees. The primary question was whether the terms and conditions outlined in the Racrob Pty Ltd Collective Agreement 2008 could be transferred to Calstores and applied to the employees in question. Additionally, the Commission had to determine whether the application complied with the statutory provisions and whether it was in the best interest of the employees.

The Fair Work Commission considered the provisions of the Fair Work Act 2009 and relevant case law in reaching its decision. It found that the application was consistent with the legislative framework and was in the best interests of the employees. The Commission concluded that the collective agreement's terms and conditions could indeed be transferred to the new employer, Calstores, and applied to the transferring employees. Consequently, the application was granted, and the relevant instruments were ordered to cover the new employer and transferring employees.

The Fair Work Commission's final orders mandated that the terms and conditions of the Racrob Pty Ltd Collective Agreement 2008 apply to the employees transferring to Calstores. This included provisions for wages, hours of work, and other employment conditions as specified in the agreement. The decision ensured the protection of the employees' rights and maintained consistency in their employment terms following the transfer.

Orders