CDC NSW Region 14 Pty Ltd T/A CDC NSW
[2023] FWC 1173
•18 MAY 2023
| [2023] FWC 1173 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
CDC NSW Region 14 Pty Ltd T/A CDC NSW
(AG2023/1141)
| Passenger vehicle transport (non rail) industry | |
| COMMISSIONER P RYAN | SYDNEY, 18 MAY 2023 |
Application for an order relating to instruments covering non-transferring employees
Introduction and Background
CDC NSW Region 14 Pty Ltd (Applicant) has made an application seeking an order pursuant to s.319(1)(b) of the Fair Work Act 2009 (FW Act) that the Transdev NSW & TWU Bus Enterprise Agreement 2022-2026[1] (Agreement) will cover non-transferring employees who perform, or are likely to perform, transferring work for the Applicant.
By way of background, the Applicant was awarded the Greater Sydney Bus Contract for Region 14 (Region 14 Contract). Region 14 covers the Upper North Shore and Forest District in which there are bus depots located at Terrey Hills and Mt Ku-Ring-Gai.
The services operated out of the Mt-Ku-Ring-Gai Depot are currently operated by Transdev NSW South Pty Ltd (Transdev South). The employees are employed by Transdev South and a related entity known as Transdev NSW Pty Ltd (Transdev NSW). The terms and conditions of employment of employees of Transdev South and Transdev NSW are covered by the Agreement.
The Region 14 Contract commences on 21 May 2023. Pursuant to the terms of the Region 14 Contract, the Applicant will have the beneficial use of some or all of the assets that FCL owned or had beneficial use of, and the Applicant must offer employment to approximately 134 employees of Transdev South and Transdev NSW.
Under the transfer of business provisions in the FW Act, the Agreement will cover the Applicant and the employees transferring from Transdev South and Transdev NSW employees.[2]
The Applicant seeks an order that the Agreement will also cover any non-transferring employees who perform, or are likely to perform, the transferring work at the Mt-Ku-Ring-Gai Depot.
Following a mention and directions hearing on 2 May 2023, I issued directions for the Applicant, any affected employees, and any relevant employee organisation to file any materials in support of, or in opposition to, the application.
No submissions were received from any affected employees. The Transport Workers’ Union filed a submission stating it supports the application.
In the circumstances, I consider it appropriate to determine the matter based on the material before the Commission.
Transfer of Business
Section 311(1) of the FW Act sets out the circumstances in which a transfer of business occurs. It states:
311 When does a transfer of business occur
(1)There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
In relation to the relevant connection, s.311(3) of the FW Act states:
(3)There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer; the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Section 312 of the FW Act defines “transferable instrument” to include “an enterprise agreement that has been approved by the FWC”.
Section 313 of the FW Act provides that “If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer”, then:
“(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer”.
Having regard to the materials before me, I am satisfied that there is likely to be transfers of business between Transdev South and the Applicant and Transdev NSW and the Applicant for the purposes of s.311(1) of the FW Act for the following reasons.
(i)The employment of employees of Transdev South and Transdev NSW will cease on 20 May 2023 and the employees will be re-employed the Applicant from 21 May 2023;
(ii)The work of the transferring employees will be the same, or substantially the same, as the work they currently perform for Transdev South and Transdev NSW;
(iii)The Applicant will have the beneficial use of some or all of the assets that:
a. Transdev South (or a related entity of Transdev South) owned or had the beneficial use of, and
b. Transdev NSW (or a related entity of Transdev NSW) owned or had the beneficial us of.
Consideration of the s.319 Application
Section 319 of the FW Act states:
319 Orders relating to instruments covering new employer and non‑transferring employees
(1) The FWC may make the following orders:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.”
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.
I am satisfied that the Applicant is entitled to make the application[3], which relies upon the terms of s.319(1)(b) of the FW Act to, in effect, extend the coverage of the Agreement to non-transferring employees.
I am satisfied that the Applicant is entitled to make the application[4], which relies upon the terms of s.319(1)(b) of the FW Act to, in effect, extend the coverage of the Agreement to non-transferring employees.
In deciding whether to make an order pursuant to s.319(1)(b) of the FW Act, the Commission must take into account the matters set out in s.319(3). I now turn to a consideration of each of those matters.
Views of the new employer – s.319(3)(a)(i)
The Applicant is the new employer, who seeks, and is supportive of, the order.
Views of the employees who would be affected by the order – s.319(3)(a)(ii)
It is not possible to obtain the views of the employees who will be affected by the order because there are no non-transferring employees currently employed by the Applicant.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.319(3)(b)
I am satisfied that any non-transferring employees will not be disadvantaged in relation to their terms and conditions of employment by the making of an order.
The nominal expiry date of the agreement – s.319(3)(c)
The nominal expiry date of the Agreement is 30 June 2026.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.319(3)(d)
I am satisfied that there will be no negative impact on productivity if the order is made. In contrast, if the order is not made and Transferring Employees and non-transferring employees subject to different terms and conditions of employment, this may have a negative impact on employee engagement and in turn upon workplace productivity.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.319(3)(e)
The Agreement’s coverage of non-transferring employees will not cause any significant economic disadvantage.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.319(3)(f)
The granting of the order will result in a greater degree of synergy for the Applicant and the employees who perform the transferring work, as all employees will be employed pursuant to a single instrument.
The public interest – s.319(3)(g)
The public interest in this matter would be served by facilitating arrangements that permit the maintenance approved employment conditions.
Conclusion
Taking in to account the matters to be considered in section 319(3) of the FW Act, I am satisfied that it is appropriate that this application be granted. An order PR762026 to that effect will be issued in conjunction with this decision.
COMMISSIONER
[1] AE516423
[2] See s.313 of the FW Act.
[3] See s.319(2)(a) of the Act.
[4] See s.319(2)(a) of the Act.
Printed by authority of the Commonwealth Government Printer
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