CHEP Australia Limited

[2019] FWC 5178

[2019] FWC 5178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

CHEP Australia Limited
(AG2019/2636)

Storage services
COMMISSIONER CAMBRIDGE	SYDNEY, 2 AUGUST 2019

Application for Orders Relating to Instruments Covering New Employer and Non-Transferring Employees.

[1] This matter involves an application made under section 319 of the Fair Work Act 2009 (the Act). The application has been made by National Workplace Lawyers on behalf of their client, CHEP Australia Limited trading as CHEP Australia (CHEP or the Applicant). The application has been made in respect of a number of prospective employees, identified in Annexure C to the Statutory Declaration of Michelle Lu, filed with the application.

[2] The application was lodged at Melbourne on 19 July 2019. The application seeks an Order from the Fair Work Commission (the Commission) relating to former employees of CHEP Pallecon Solutions Pty Ltd (CHEP Pallecon) who are new employees of CHEP Australia Limited (the Transferring Employees).

[3] The application contains grounds and submissions which, in relevant summary, contend that:

•  The Transferring Employees are currently employed by CHEP Australia Limited under the terms of the CHEP Pallecon Solutions VIC and NSW (North Melbourne and Wetherill Park) Service Centre Enterprise Agreement 2016 (the CHEP Pallecon Agreement);

•  The Transferring Employees commenced employment with CHEP Australia Limited on 1 July 2018 to perform work that is the same or substantially the same, as the work performed when employed by the CHEP Pallecon Agreement (Transferring Work);

•  At all relevant times, CHEP Pallecon Solutions Pty Ltd was an associated entity of CHEP Australia Limited.

•  The Transferring Employees from CHEP Pallecon performing Transferring Work with CHEP Australia Limited would be covered by the CHEP Pallecon Agreement, which will bring operational simplicity to its business.

•  CHEP Australia Limited is yet to employ a Non-Transferring Employee. If the Order is not made, any Non-Transferring Employee would be covered by the Storage Services Award 2010 (the Award). The rates of pay and other monetary entitlements provide for under the CHEP Pallecon Agreement are significantly better than those provided for under the Award.

[4] The matter was listed for a Hearing in Chambers on 2 August 2019. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.319 of the Act. Section 319 is in the following terms:

“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.

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.

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.”

[6] The Commission has reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application, and the accompanying materials including the Statutory Declaration of Michelle Lu, I have taken into account the provisions of paragraphs (a) to (g) of subsection 319 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted, and Orders [PR710693] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

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<AE421798  PR710692 >