Central Queensland University

[2014] FWC 4132

[2014] FWC 4132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.768AX - Application to vary copied State instruments

s.768BD - Application to consolidate orders in relation to transferring employees

s.768BG - Application to consolidate orders in relation to non-transferring employees

Central Queensland University
(AG2014/6101, AG2014/6103, AG2014/6105 and AG2014,6108)

COMMISSIONER BOOTH BRISBANE, 26 JUNE 2014

Consolidation orders and application to vary the Copied State Instruments covering TAFE Teaching Employees.

[1] An application under sections 768AX, 768BD and 768BG and of the Fair Work Act 2009 (the Act) for orders relating to instruments covering a new employer and transferring and non-transferring employees were filed by Central Queensland University (CQU) on 20 May 2014.

[2] CQU seek orders so that the transferring and non-transferring employees from

● CQ TAFE Canning Street Campus, Rockhampton ● CQ TAFE Mackay City Campus
● CQ TAFE Ooralea Campus
● CQ TAFE Yeppoon Campus
● CQ TAFE Central Highlands Campus
● CQ TAFE Biloela Campus

are covered by consolidated Copied State Instruments. CQU is also seeking orders to vary the copied state instruments which will be known as the:-

● Central Queensland University Educational Employees Copied State Employment Agreement 2014 (copied state agreement); and

● Central Queensland University TAFE Teachers Copied State Award 2014 (copied state award).

[3] It is the intention of CQU that the Copied State Agreement is to be read in conjunction with the Copied State Award.

Background

[4] CQU is a constitutional corporation and a national system employer. CQ TAFE is a State public sector employer. The TAFE Teaching employees will be performing the same work, or substantially the same, as the work they performed for the old State employer.

[5] The intention of the CQU is that the TAFE Teaching employees recruited by CQU who transfer from CQ TAFE would be offered employment with CQU on the basis that their terms and conditions of employment would be regulated by the Copied State Agreement and the Copied State Award.

[6] The orders sought by CQU have the effect of affirming that the former employees of CQ TAFE who become employees of CQU will not be covered by the University’s Enterprise Agreement as it does not provide suitable terms and conditions for TAFE Teaching staff.

The legislation

[7] The application is made pursuant to s. 768AX, 768BD and 768BG and of the Act, which allows the Commission to make orders that a copied State instrument for a transferring employee will cover the transferring and non-transferring employee, and that the CQU’s enterprise agreement does not cover the transferring and non-transferring employee.

[8] The matters the FWC must take into account in determining whether to make the above orders are set out in sections 768AX(3), 768BD(3) and 768BG(4):

“Matters that the FWC must take into account

In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

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

(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 a copied State employment agreement or an enterprise agreement--the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

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

(g) the public interest.”

[9] I turn now to consider these factors.

Relevant Factors

[10] As the new employer or likely new employer, CQU is able to make an application of the present type under sections 768AX(2), 768BD(2) and 768BG(3). The orders sought by CQU are within the scope of these sections of the Act.

[11] A statutory declaration provided by Jacinta Cumming, Manager HR Business Improvement on behalf of CQU states that the application is made following:-

● consultation with the TAFE Teaching employees affected;

● information given to employees that they may seek advice through People and Culture at a specific email address;

● meetings held by video-conference where employees views were sought and questions answered; and

● individual emailed queries responded to by CQU.

[12] The Copied State Award and Copied State Agreement provide terms and conditions of employment which are more beneficial than those set out in the CQU Enterprise Agreement. I consider that transferring and non-transferring employees would not be disadvantaged as a result of being covered by the Copied State Instruments.

Conclusion

[13] I have considered the matters set out in the relevant sections of the Act and I am satisfied on the basis of supporting documentation provided with the Application and the additional material provided that the orders should be issued.

[14] Further, as the consultation terms do not meet the requirements of the Act, the model consultation term is taken to be a term of the Copied State Agreement and Copied State Awards and is attached to the varied Agreement and the varied Awards.

[15] The Applications are granted and Orders in the terms sought will be issued accordingly.

COMMISSIONER

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