Coles Group Supply Chain Pty Ltd

[2017] FWC 2396

[2017] FWC 2396

FAIR WORK COMMISSION

DECISION

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

Coles Group Supply Chain Pty Ltd
(AG2017/1481)

Storage services
COMMISSIONER ROE	MELBOURNE, 3 MAY 2017

Application for order relating to instruments covering new employer and non-transferring employees; Polar Fresh Eastern Creek Enterprise Agreement 2014.

[1] Coles Group Supply Chain Pty Ltd (Coles) has taken over the operation of the Eastern Creek Distribution Centre from Polar Fresh Cold Chain Services Pty Ltd on or around 1 May 2017. As a result Coles now employs those employees previously employed by Polar Fresh. The work of the employees has not significantly changed. There was a transfer of business in accordance with Section 311 of the Fair Work Act 2009 (the Act). The transferring employees are covered by the transferable instrument, the Polar Fresh Eastern Creek Enterprise Agreement 2014(the Agreement). The nominal expiry date of the Agreement is 19 September 2018.

[2] Coles will employ new employees who will perform work covered by the transferable instrument (non-transferring employees). If an order is not made under Section 319 of the Act as sought by Coles these employees will remain covered by the Storage Services and Wholesale Award 2010 (the Award). The transferring work is the work which will be performed by those non-transferring employees who will be covered by the Agreement if the Order is made.

[3] I am satisfied that the terms of the Agreement significantly advantage employees when compared to the Award. For example, rates of pay are higher and redundancy provisions are superior.

[4] The National Union of Workers (NUW) and the Australasian Meat Industry Employees Union (AMIEU) are covered by the Agreement and they have provided written support of the application. No employee advised that they had any objection to the application.

[5] I have considered the matters set out in Section 319(3) of the Act. I am satisfied that:

(a) The employer supports the application because it will provide consistency of terms and conditions for its employees.

(b) No employee will be disadvantaged by the order.

(c) There is considerable time until a new enterprise agreement will be negotiated to cover all employees.

(d) There will be positive impacts on transferring employees and no negative impact on productivity.

(e) There is no significant economic disadvantage to the employer as all current employees are covered by the instrument.

(f) Avoiding multiple workplace instruments will improve business synergy.

(g) It is in the public interest for employees to have access to superior and consistent terms and conditions and a collectively bargained agreement.

[6] The factors in Section 319(3) support the making of the Order sought pursuant to Section 319(1)(b). In weighing the factors considered above I would have regard to the Object of Part 2-8 - Transfer of Business of the Act as set out in Section 309. That requires me to balance the protection of employees and the efficient running of business.

[7] I am satisfied that the Order should be made in accordance with Section 319(1)(b) that the Polar Fresh Eastern Creek Enterprise Agreement 2014 covers or will cover non-transferring employees who perform or are likely to perform the transferring work for the new employer, Coles Supply Chain Pty Ltd. The Order will operate from today’s date and will come into operation in relation to each non-transferring employee from the date he or she starts to perform the transferring work.

COMMISSIONER

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<Price code A, AE410272  PR592562 >