Commonwealth Superannuation Corporation
[2016] FWC 7676
•21 OCTOBER 2016
| [2016] FWC 7676 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.320—Transferable instrument—agreement
Commonwealth Superannuation Corporation
(AG2016/6323)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 21 OCTOBER 2016 |
Application to vary a transferable instrument - agreement.
[1] An application has been made by the Commonwealth Superannuation Corporation (CSC – the Applicant) to the Fair Work Commission (the Commission), pursuant to s.320 of the Fair Work Act 2009 (the Act), to vary the ComSuper Enterprise Agreement 2015-2018 1(the transferable instrument).
[2] The transferable instrument is an enterprise agreement which was approved by the Commission on 19 June 2015 2 and which commenced operation on 26 June 2015. Section 14(1) of Schedule 2 of the Governance of Australian Government Superannuation Schemes Legislation Amendment Act 2015 (Cth) (the Amendment Act) provides that:
“14 Transfer of business
(1) The transfer of staff of ComSuper to CSC is a transfer of business for the purposes of the Fair Work Act 2009.
(2) Despite section 312 of the Fair Work Act 2009, the only transferable instrument in relation to the transfer of business is the enterprise agreement that:
(a) covers the CEO of ComSuper on behalf of the Commonwealth and staff of ComSuper; and
(b) has been approved by the Fair Work Commission; and
(c) is in force immediately before commencement.”
[3] Schedule 2 of the Amendment Act commenced operation on 1 July 2015. In short, the transferable instrument was in force immediately before commencement as required by s.14(1) of Schedule 2 of the Amendment Act.
[4] ComSuper was merged into CSC as and from 1 July 2015, with Australian Public Service employees in ComSuper transferred to the CSC. The application seeks to vary clauses 63.1 and 25.1 of the transferable instrument to align the performance management cycle of former ComSuper employees with the performance management cycle applying to other CSC employees. The proposed variation to clause 25.1 is a consequential amendment flowing from the proposed variation to clause 63.1.
[5] The Applicant is the new employer and has made the application pursuant to s.320(3)(a) of the Act as a person who is covered by the transferable instrument.
[6] Section 320 of the Act provides as follows:
“320 Variation of transferable instruments
Application of this section
(1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.
Power to vary transferable instrument
(2) The FWC may vary the transferable instrument:
(a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or
(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:
(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and
(ii) the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or
(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.
Who may apply for a variation
(3) The FWC may make the variation only on application by:
(a) a person who is, or is likely to be, covered by the transferable instrument; or
(b) if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.
Matters that the FWC must take into account
(4) In deciding whether to make the variation, 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 transferable instrument as varied;
(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;
(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument, without the variation, 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, without the variation;
(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when variation may come into operation
(5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:
(a) the time when the transferable instrument starts to cover the new employer;
(b) the day on which the variation is made.”
Matters the Commission must take into account [s.320(4)]
(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 transferable instrument as varied;
[7] The Applicant who is the new employer supports the proposed variations to the transferrable instrument.
[8] Ms Beth Vincent-Pietsch, Deputy Secretary of the Community and Public Sector Union (CPSU) wrote to the Commission on 20 October 2016 advising that the CPSU has coverage of CSC employees and that the CPSU acknowledges the benefit of the proposed variations for staff. Importantly, Ms Vincent-Pietsch advised that the CPSU supports the proposed variations to the transferrable instrument.
(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;
[9] The Applicant provided a witness statement from Ms Catharina Maria Armitage, Senior Manager, HR Business Partnering for the Applicant. Ms Armitage deposed in her witness statement that the CSC had consulted employees affected by the proposed variations and their representatives through the CSC’s Workplace Relations Committee (WRC). Ms Armitage further deposed that the WRC supported the proposed variations “having regard to the feedback received from staff and being satisfied that no staff would be disadvantaged by the proposed variations” 3 (underlining added).
[10] As noted above, the CPSU acknowledges the benefit of the proposed variations for CSC staff.
(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;
[11] The nominal expiry date of the transferable instrument is 26 June 2018.
(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;
[12] The Applicant submits that the transferring instrument, without the proposed variations, would have a negative impact on the business of the Applicant.
[13] Ms Armitage deposed in her witness statement that the continued operation of two separate performance management frameworks supported by different software, involving different approaches and assessments and on different performance cycles would be inefficient, ineffective and costly in terms of time, money and resources for CSC. Ms Armitage further deposed that maintaining two separate performance management frameworks would also create operational inefficiencies. 4
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;
[14] The Applicant stated in its application that without the proposed variation to clause 63.1 of the transferrable instrument it would be running two performance cycles and continue to incur significant economic disadvantage due to the need to license, maintain and operate two separate IT systems to support the different performance management processes.
[15] Ms Armitage deposed in her witness statement that the proposed variations would “reduce the costs and resources required to support the performance management and remuneration framework and systems” operating in CSC 5.
(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;
[16] The Applicant submits that the degree of business synergy between the transferable instrument, without the variation, and the workplace instrument that already covers the new employees would be affected as the Applicant would be required to have separate processes and functions for performance management of employees already engaged by the Applicant.
[17] The CPSU in its correspondence of 20 October 2016 acknowledged the positive administrative impact flowing from aligning the two separate and distinct performance management cycles presently operating in respect of CSC employees.
(g) the public interest.
[18] There is no evidence that the public interest is agitated in this matter.
Conclusion
[19] Taking into account each of the matters set out in s.320(4) of the Act, I am satisfied that it is appropriate to vary the transferrable instrument as sought and in accordance with s.320(2)(c) of the Act.
[20] An Order to that effect will be issued concurrently with this decision.
1 AE414386
2 [2015] FWC 4107
3 Witness Statement of Catharina Maria Armitage of 10 October 2016 at paragraph 40
4 Ibid at paragraph 14
5 Ibid at paragraph 16(b)
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