Celotti Pty Ltd T/A Celotti Workforce

[2022] FWC 1578

[2022] FWC 1578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Celotti Pty Ltd T/A Celotti Workforce

(AG2022/1694)

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 22 JUNE 2022

Application for an order relating to instruments covering new employer and non-transferring employees

INTRODUCTION

1. An application pursuant to s.319 of the Fair Work Act 2009 (the Act) was made by Celotti Pty Ltd (the Applicant/ the new employer) for an Order under s.319(1)(b), that the CWTIS Employee Agreement 2020 (the Agreement/the transferable instrument) cover non-transferring employees who perform, or are likely to perform, transferring work for the Applicant.

1. In accordance with s.319(1)(b) of the Act, the Applicant sought an Order to be made to permit the transferable instrument to cover any non-transferring employees who perform, or are likely to perform, the transferring work covered by the Agreement.

1. Section 313(1) provides that a transferrable instrument that covered The Trustee for Celotti Australia Discretionary Trust T/A Celotti Workforce (the old employer) and the transferring employees immediately before the transfer of the employment will cover the new employer (being the Applicant). The operation of these sections means that the Applicant would be covered by the Agreement in relation to the transferring employees.

RELEVANT PROVISIONS

1. Pursuant to s.319 of the Act:

“319 Orders relating to instruments covering new employer and non-transferring
employees

Orders that the FWC may make

(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.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a)the new employer or a person who is likely to be the new employer;

(b)   a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c)if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d)   if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the
following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring
employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

s.319(3)(a)(i) – the views of the new employer

1. The Applicant seeks to ensure a consistent application of the transferable instrument across its workforce, which will become employed by the new employer (being the Applicant).

s.319(3)(a)(ii) – the views of the new employees

1. The Applicant submits there are not presently any non-transferring employees of the Applicant who would otherwise be covered by the Agreement, and therefore their views in relation to this Application cannot be obtained.

s.319(3)(b) – whether any employees would be disadvantaged

1. The Applicant submits that no employees would be disadvantaged. Upon approval of the application, new employees would be on equal conditions to transferring employees.

s.319(3)(c) – the nominal expiry date

1. The nominal expiry date of the Agreement is 23 December 2024.

s.319(3)(d) – negative impact on productivity

1. The Applicant submits that there will be no negative impact on the productivity at the new employer’s workplace. No transferring employees would be impacted. Further, non-transferring (new) employees covered by the Agreement would be subject to the same terms and conditions as transferring employees covered by the Agreement.

s.319(3)(e) – economic disadvantage

1. The Applicant submits that the new employer will not incur significant economic disadvantage as a result of the transferable instrument covering them.

s.319(3)(f) – degree of business synergy

1. The Applicant submits that some non-transferring employees who would be employed by the new employer are likely to be covered by the Building and Construction General On-site Award 2010 (Award). The current Agreement applies to and is binding on the company in relation to its transferring employees engaged across Australia, who are otherwise covered by the Award.

1. When asked for further information, the Applicant’s representative advised that the submission described in [11] above was to ensure that the Agreement does not apply to all staff engaged by the Applicant, and only those who would otherwise be covered by the Award.

s.319(3)(g) – public interest

1. The Applicant submits that the Agreement supports implementing greater safety measures which is in the public interest.

CONCLUSION

1. I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.

1. The Order PR742892 will issue with this Decision and take effect in accordance with s.319(4) of the Act.

COMMISSIONER

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<AE509965  PR742893>