Commonwealth Department of Defence

[2011] FWA 3083

[2011] FWA 3083

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Commonwealth Department of Defence
(AG2011/9381)

VICE PRESIDENT LAWLER MELBOURNE, 18 MAY 2011

Transfer of employees from BAE Systems Australia Limited to Department of Defence

[1] This is an application by the Commonwealth of Australia as employer of employees in the Department of Defence (Defence) for an order under s.318 of the Fair Work Act 2009 (FW Act).

[2] Defence has in-sourced functions that were previously out-sourced to a contractor, BAE Systems Australia Ltd (BAE). A number of BAE employees working in connection with those functions have ceased employment with BAE and commenced (or re-commenced) employment with Defence (transferring employees). When employed by BAE, the transferring employees were covered by a workplace agreement, the Vertical Employees Collective Agreement 2006 (BAE Agreement).

[3] Defence correctly accepts that the BAE Agreement is a “transferable instrument” within the meaning of s.312 of the FW Act (and item 8 of Schedule 11 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009) that would, or would be likely to, cover:

(a) the Commonwealth of Australia as employer of employees in the Department of Defence, and

(b) the transferring employees

[4] Defence correctly accepts that the arrangements in question involve a transfer of business within the meaning of Part 2-8 of the FW Act such that, because of s.313(1)(a) of the FW Act, the BAE Agreement now covers Defence in relation to the transferring employees and those employees unless an order is made pursuant to s.318 that this not occur.

[5] If such an order is made Defence accepts that the transferring employees will be covered by the existing Defence collective agreement, the Defence Enterprise Collective Agreement 2009 (DECA) and that each of the transferring employees is better off under the DECA when compared to the BAE Agreement.

[6] Each of the transferring employees has also made an application for an order under s.318 equivalent to that sought by Defence. Each of those applications makes it clear that the transferring employee wants to be covered by the DECA because they consider that they will be better off under the DECA. In other words, the present application should be treated as being by consent.

[7] I have considered each of the matters specified in s.318(3). It is unnecessary to comment on each of those matters in detail. It is sufficient to note that the factors specified in s.318(3) overwhelmingly favour the granting of the application.

[8] I allow the application by Defence and an appropriate order will issue in conjunction with this decision. It is unnecessary to deal with the separate applications by the transferring employees. The outcome to which those applications were directed is achieved by the order made on the application by Defence.

VICE PRESIDENT

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