Commonwealth Scientific and Industrial Research Organisation
[2009] FWA 1331
•26 NOVEMBER 2009
[2009] FWA 1331 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in awards
(C2009/252)
COMMISSIONER DEEGAN | CANBERRA, 26 NOVEMBER 2009 |
Orders relating to instruments covering new employer and transferring employees.
[1] The matter arises from an application filed on 6 November 2009 under s.318 of the Fair Work Act 2009 (“the Act”) by Commonwealth Scientific and Industrial Research Organisation (CSIRO or “the likely new employer”) for an order that the Information Technology Industry (Professional Employees) Award 2001 (the transferable instrument) not cover the CSIRO or any employees of the CSIRO formerly engaged by Plant Health Australia (PHA) (the relevant employees).
[2] The background to this application is as follows:
- The Department of Innovation has approached CSIRO to take over as lead agent from Plant Health Australia for the Australian BioSecurity and Intelligence Network (ABIN) in order to provide administrative and IT networking support that Plant Health Australia (PHA) is unable to provide;
- CSIRO intends as the lead agent to offer employment to the PHA employees working on ABIN in order to continue performing substantially the same work as performed whilst engaged by PHA.
[3] The matter was listed for hearing and all relevant parties notified. An order for substituted service was granted in relations to parties to the IT Award.
[4] At the hearing of the application the likely new employer was represented by Mr C. Smith, together with Mr I. Chalker and Mr T. Courtney (CSIRO employees) and Mr R. Drinkwater from the CPSU represented both that union and the CSIRO Officers Association and Mr M. Murphy represented APESMA.
The Legislation
[5] Section 318(1) of the Act relevantly provides:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.”
Consideration
[6] The grounds for the application were set out in some detail in the application. Each matter that Fair Work Australia (FWA) must take into account when deciding whether to make an order under s.318 was addressed. Further information in relation to those matters was also provided at the hearing.
[7] The representatives of the unions did not object to the order sought being made but raised one matter concerning the manner in which accumulated recreation leave for the relevant employees was to be dealt with by CSIRO. Subsequent to the hearing further negotiations between the unions and CSIRO reached a satisfactory resolution of this matter and this resolution was notified to FWA.
[8] On the basis of the information provided both in and with the application and at the hearing I have reached a number of conclusions in relation to the application.
[9] It is clearly the new employer’s position that it should not be covered by the transferable instrument. Additionally all relevant employees have indicated a preference to be covered by the enterprise agreement covering CSIRO employees (the CSIRO Enterprise Agreement 2008-2011 – the CSIRO EA).
[10] Given the relative terms of the transferable instrument and the CSIRO EA and the additional information provided by the likely new employer I am satisfied that no relevant employee would be disadvantaged in relation to their terms and conditions of employment if the order were granted in the terms sought.
[11] The order does not relate to an enterprise agreement as the transferable instrument is an award.
[12] The matters set out in the application are sufficient to persuade me that the transferable instrument could have a negative impact of productivity at the new employer’s workplace through additional complexity and uncertainty about employment conditions. While it is clear that additional administrative arrangements that would be needed if the transferable instrument was to apply to the new employer could put the CSIRO to some additional cost I am not convinced that the CSIRO would incur significant economic disadvantage as a result.
[13] I am satisfied that there is very little business synergy between the transferable instrument and the CSIRO enterprise agreement.
[14] I am unable to discern any public interest in either refusing or granting the order sought.
Decision
[15] Having taken into account all those matters set out in s.318 of the Act I have decided to make an order that the transferable instrument will not apply to the new employer or any relevant employees engaged by the new employer.
Orders
[16] An Order [PR991212] giving effect to this decision is published separately.
COMMISSIONER
Hearing details:
23 November 2009
Canberra
Printed by authority of the Commonwealth Government Printer
<Price code A, PR991211>
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