Club Resorts No.1 Australia Ltd

[2015] FWC 5277

[2015] FWC 5277

FAIR WORK COMMISSION

DECISION

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

Club Resorts No.1 Australia Ltd
(AG2015/4133)

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 AUGUST 2015

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

[1] This is an application filed by Club Resorts No.1 Australia Ltd (the ‘applicant’), 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 s 319(1)(b) that the Surfers Paradise Marriott Resort and Spa Enterprise Agreement 2012 [AE894140] cover non-transferring employees engaged by the applicant who will, or are likely to perform transferring work required by the . I note that the Agreement had a nominal expiry date of 30 June 2015 and that United Voice (the ‘Union’) is covered by the Agreement. These employees would otherwise be covered by the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

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] In the Form F40 Application, the applicant’s representatives explained that the orders are sought in the context of the applicant being due to complete, on or about 31 July 2015, a business sale agreement with EHP (Gold Cast) Pty Ltd (‘EHP’) ( the employer currently covered by the Agreement), which would result in the applicant being covered by the Agreement. It was put that if the orders sought by the applicant were not made, there would be a negative impact on productivity, business synergy and industrial harmony. Further, the applicant would sustain an administrative burden in being required to administer the Award and the Agreement in relation to employees performing the same work.

[4] The application was accompanied by a statutory declaration of Mr W Minnock, which set out the circumstances of the applicant’s business sale agreement with EHP. He explained that all of the employees of EHP performing work under the Agreement had been offered employment with the applicant on comparable terms and conditions. He noted that, in comparison to the Award, the Agreement provides for superior superannuation entitlements, a birthday holiday and an apprentice bonus. It was the applicant’s view that it was appropriate for all of its employees performing transferring work to be covered by a common industrial instrument. If the orders were not granted, Mr Minnock said that there would be negative effects on business synergy and productivity and industrial harmony.

[5] In light of the Union being covered by the Agreement, the Commission sought its view on the application and Mr S Ong of the Union, in correspondence with my chambers, advised that the Union, having reviewed the application and accompanying material, did not object to the orders being sought by the applicant.

[6] Having considered the materials filed by the applicant, I intend to make the orders sought. In doing so, I have taken all of the matters in ss 319(3) into account; in particular, the views of the applicant and the Union. I am satisfied that there is no significant disadvantage to the employees if the orders are granted and, conversely that that there would a negative impact on the productivity of the applicant’s workplace should the orders not be granted. For the sake of completeness, I am satisfied that granting the orders would not be contrary to the public interest. Orders giving effect to my conclusions are published contemporaneously with this decision.

DEPUTY PRESIDENT

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