Cleanaway Operations Pty Ltd

[2019] FWC 434

[2019] FWC 434

FAIR WORK COMMISSION

DECISION

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

Cleanaway Operations Pty Ltd
(AG2018/6815)

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 JANUARY 2019

Application for an order re instruments covering new employer and non-transferring employees in agreements – application granted – orders made.

[1] This is an application, filed by Cleanaway Operations Pty Ltd, pursuant to s 319 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’), pursuant to 319(b) that the Toxfree NSW Industrial Services Enterprise Agreement 2016-2019 (AE420093)(the ‘Agreement’) will cover Cleanaway Operations Pty Ltd and any non-transferring employees performing the transferring work.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

‘317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

...

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.’

[3] The applicant provided written submissions in support of its application addressing the statutory requirements the Commission must take into account in addressing applications of this type. Ms D. Kavanagh, National Employee Relations Manager described how, upon transfer of employment of existing employees to Cleanaway on 1 January 2019, the Agreement transferred and now covers Cleanaway. The basis for the application is to ensure any new employees of Cleanaway who perform the transferring work, will also be covered by the Agreement. In this respect, it would enable business synergy for the operations. The other factors were neutral in this case.

[4] At a hearing of the application on 24 January 2019, Ms D Kavanagh appeared for the applicant. Mr Z Duncalfe of the Australian Workers’ Union (which is covered by the Agreement), advised on 21 January 2019 that the Union does not oppose the application and would not appear at the hearing. Ms Kavanagh affirmed the content of the application and accompanying submissions.

[5] Having considered the submissions of the applicant and the relevant statutory provisions, and upon reviewing the application, I see no reason why the orders sought by the applicant should not be made. Orders giving effect to my decision will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms D Kavanagh for Cleanaway.

Hearing details:

2019:

Sydney.

January 24.

Printed by authority of the Commonwealth Government Printer

<AE420093  PR704270 >