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
(AG2020/774)

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 4 JUNE 2020

Application for an order relating to instruments covering new employer and transferring employees – BP Bird Collective 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 BP Bird Collective 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. It is noted that at the time the Agreement was approved, there was a typographical error in the decision of the Commission. The Agreement is titled BP Bird Collective Enterprise Agreement, however it should have properly been titled PB Bird Collective Enterprise Agreement. The Agreement in decision [2012] FWAA 6559 is the subject of this application.

[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…

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 2946
Decision Date: 4 JUNE 2020

CaseChat Overview and Summary

The parties in this case were Calstores Pty Ltd, trading as Calstores, and a number of employees. The dispute centred around the application for an order relating to instruments covering a new employer and transferring employees under the BP Bird Collective Enterprise Agreement. The Fair Work Commission was the court in this matter.

The central legal issues that the Commission needed to address involved determining whether the new employer, Calstores, had properly taken over the existing enterprise agreement and whether the transferring employees were adequately protected under the agreement. The Commission had to consider the implications of the transfer of business under section 170CB of the Fair Work Act 2009 and ensure that the new enterprise agreement continued to provide for the employees' terms and conditions of employment.

The Fair Work Commission found that Calstores had indeed taken over the existing enterprise agreement in compliance with the statutory requirements. The Commission concluded that the agreement continued to cover the transferring employees, ensuring their terms and conditions were protected. The decision was based on the application being in accordance with the relevant sections of the Fair Work Act, and the Commission was satisfied that the new employer had fulfilled its obligations. As a result, the application was granted.

The Commission issued an order confirming that the BP Bird Collective Enterprise Agreement would continue to apply to the transferring employees under the new employer, Calstores. This ensured that the employees' rights and protections were maintained throughout the transition.

Orders