Commonwealth of Australia represented by the Australian Taxation Office

[2020] FWC 6328

[2020] FWC 6328

FAIR WORK COMMISSION

DECISION

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

Commonwealth of Australia represented by the Australian Taxation Office
(AG2020/3423)

DEPUTY PRESIDENT DEAN SYDNEY, 30 NOVEMBER 2020

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

[1] The Commonwealth of Australia represented by the Australian Taxation Office (ATO) has made an application pursuant to s.318 of the Fair Work Act 2009.

[2] The application arises from the formation of a new registry service involving the merger of the Australian Business Register administered by ATO and 31 registers administered by the Australian Securities and Investments Commission (ASIC). The intended merger would see some 238 ASIC employees being transferred to ATO which is scheduled to occur in around April 2021.

[3] The instruments relevant to the application are the Australian Securities Investment Commission Enterprise Agreement 2019 - 2022 (the ASIC Agreement) that applies to current ASIC employees and the Australian Taxation Office (ATO) Enterprise Agreement 2017 (the ATO Agreement) which applies to employees engaged by ATO.

[4] ATO accepts that the transfer of ASIC employees to ATO involves a transfer of business within the meaning of s.311(1) of the Act and in accordance with s.313, the ASIC Agreement is a ‘transferable instrument’ which would cover ATO and the employees transferred from ASIC (transferring employees).

[5] ATO now seeks an order to the effect that, at the time the transferring employees become employed by the ATO, the ASIC Agreement does not cover the ATO and the transferring employees and that the ATO Agreement instead covers the transferring employees.

[6] Section 318 of the Act sets out the circumstances in which the order sought by the ATO may be made. It provides:

“318 Orders relating to instruments covering new employer and 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 transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

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 transferring employee, or an employee who is likely to be a transferring employee;

(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 transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.”

[7] ATO provided written submissions and a statutory declaration from Mr Jeremy Moore, Assistant Commissioner, Workplace Relations, in support of the application. The submissions set out detailed grounds of the application and address each of the matters in s.318(3) to which the Commission has to take into account in determining whether to make the order sought.

[8] The Community and Public Sector Union, being the employee organisation covered by the ASIC Agreement, indicated its support of the application.

[9] Having considered the material provided, I am satisfied that all the requirements of s.318 of the Act have been met and an order in the terms sought should be made.

[10] An order will be issued with this decision.

DEPUTY PRESIDENT

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