Coles Group Supply Chain Pty Ltd

[2017] FWC 1731

[2017] FWC 1731

FAIR WORK COMMISSION

DECISION

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

Coles Group Supply Chain Pty Ltd
(AG2017/952)

COMMISSIONER ROE MELBOURNE, 27 MARCH 2017

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

[1] Coles Group Supply Chain Pty Ltd (Coles) has made an application to the Fair Work Commission for an order under Section 319 of the Fair Work Act2009 (the Act) for the Polar Fresh Parkinson CDC and National Union of Workers Enterprise Agreement 2014 (the Agreement) to cover it, as the new employer, and non-transferring employees, who will perform the transferring work.

[2] Coles has ceased the outsourcing arrangement with Polar Fresh Cold Chain Services Pty Ltd (Polar Fresh) and the transferring work will now be performed by the transferring employees as direct employees of Coles. The work of the employees will not significantly change. There has been a transfer of business in accordance with Section 311 of the Act. The transferring employees are covered by the transferable instrument, the Polar Fresh Parkinson CDC and National Union of Workers Enterprise Agreement 2014. The nominal expiry date of the Agreement is 31 July 2017.

[3] 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 be covered by the Storage Services and Wholesale Award 2010. 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. I am satisfied that the terms of the Agreement significantly advantage employees when compared to the Award.

[4] The NUW is covered by the Agreement and they have provided written support of 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 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 Parkinson CDC and National Union of Workers Enterprise Agreement 2014 will cover the Applicant, Coles Group Supply Chain Pty Ltd and any non-transferring employee of the Applicant (as defined in Section 314(2) of the Act) who performs, or is likely to perform the transferring work, being work for the Applicant within the scope of the Polar Fresh Parkinson CDC and National Union of Workers Enterprise Agreement 2014.

[8] Pursuant to Section 319(4) the Order shall have effect from the day on which the Order is made and will come into operation in relation to each non-transferring employee from the date they start to perform the transferring work for Coles Group Supply Chain Pty Ltd.

COMMISSIONER

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