Civil Pacific Services (Aust) Pty Ltd T/A CPS
[2017] FWC 3290
•19 JUNE 2017
| [2017] FWC 3290 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
s.319 - Orders relating to instruments covering new employer and non-transferring employees
Civil Pacific Services (Aust) Pty Ltd T/A CPS
(AG2017/1865)
Building, metal and civil construction industries | |
COMMISSIONER HUNT | BRISBANE, 19 JUNE 2017 |
Application for an order relating to instruments covering new employer and transferring employees and non-transferring employees.
[1] Civil Pacific Services (Aust) Pty Ltd (CPS) is a related business entity of Civil Pacific Services Group Pty Ltd (CPS Group).
[2] CPS Group has in place an enterprise agreement titled ‘CPS Enterprise Agreement 2016 – 2020’ (the Agreement) covering employees of CPS Group who would otherwise be employed pursuant to the Building and Construction General On-Site Award 2010 (the Award).
[3] On or around June 2016, all relevant employees of CPS Group who were covered by the Agreement transferred employment from CPS Group to CPS.
[4] CPS has made an application to the Fair Work Commission (the Commission) seeking orders that the Agreement cover CPS and transferring employees. The power of the Commission to make the order is available pursuant to s.318 of the Fair Work Act 2009 (the Act).
[5] Further, CPS makes an application for the Agreement to apply to new employees of CPS who are performing work done pursuant to the Agreement who were not ever employed by CPS Group. CPS has been applying the terms of the Agreement to the new employees and now seeks an order of the Commission declaring the Agreement to apply to the non-transferring employees.
[6] On 16 June 2017, I conducted a conference by telephone with Mr David Lyons of Workplace Solutions representing CPS. Mr Luke Gaskin of CPS participated in the teleconference. Having heard from Mr Lyons and Mr Gaskin, I indicated the considerations the Commission must have to make orders pursuant to s.318 and s.319 of the Act.
[7] In determining whether to make the orders sought relevant to transferring employees, s.318(3) of the Act states the Commission must have regard to the following:
‘Orders relating to instruments covering new employer and transferring employees
(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.’
[8] In determining whether to make the orders sought relevant to non-transferring employees, s.319(3) of the Act states the Commission must have regard to the same matters that require consideration in s.318(3). It is unnecessary to repeat them.
[9] CPS contends that with respect to its views, it is in full support of the orders being made. This is obvious as it is the entity having made the application.
[10] CPS contends that transferring employees and non-transferring employees would not be disadvantaged by the orders if they are made. Transferring employees’ conditions will not change as CPS has been applying the Agreement since it became the employer. Non-transferring employees’ entitlements are derived from the Award, and the Agreement’s conditions are greater than the Award.
[11] CPS contends that the nominal expiry date of the Agreement, 1 March 2020 is of neutral consideration.
[12] CPS states that it would not have a negative impact on productivity on CPS if the Agreement was ordered to apply, nor would it incur significant economic disadvantage.
[13] CPS contends that it and CPS Group are related entities using common assets. There is currently no workplace instrument other than the Award that applies to new employees of CPS.
[14] With respect to the public interest, CPS contends that if the orders are not made as sought, CPS is at industrial risk of losing opportunities in the industry in which it operates. Some customers are confused when CPS tenders for work as CPS and produces for consideration the Agreement covering CPS Group. It is submitted this may have an impact on CPS securing federal government work where the federal Building Codes have application.
[15] Further, relevant to the public interest consideration, CPS contends employees covered by the Award will receive rates of pay and conditions superior to the Award.
[16] My preliminary view is that the Commission is minded to make the orders as sought, but not until employees who would be affected by the order(s) have had an opportunity to inform the Commission of their views and those views taken into account. This is a requirement that must be met before the decision to issue orders can be made.
[17] Accordingly, CPS is directed to provide a copy of this Statement to transferring employees and non-transferring employees who would be covered by the Agreement if the orders were made. CPS will, by no later than 4.00pm on 21 June 2017 provide a copy of this Statement to relevant employees by hand-delivering it to them or by email.
[18] If any relevant employee wishes to have their views considered, they are invited to correspond in writing to my Chambers at the following address: [email protected] Employees should send email communication by no later than 4.00pm on 28 June 2017, and copy in the applicant at the following addresses: [email protected] and [email protected]
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, AE418490 PR593795 >
0
0