Construction, Forestry, Maritime, Mining and Energy Union
[2023] FWC 963
•24 APRIL 2023
| [2023] FWC 963 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Construction, Forestry, Maritime, Mining and Energy Union
(AG2022/5284)
TUFTMASTER CARPETS - TCFUA ENTERPRISE AGREEMENT 2017
| Clothing industry | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 24 APRIL 2023 |
Application for an order relating to instruments covering new employer and non-transferring employees
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied for an order under section 319 of the Fair Work Act 2009 (Act) to the effect that the Tuftmaster Carpets - TCFUA Enterprise Agreement 2017 (the Agreement) will cover Tuftex Carpets Pty Ltd trading as Tuftmaster Carpets in relation to non-transferring employees.
The Textile, Clothing and Footwear Union of Australia (TCFUA) was a registered employee organisation covered by the Agreement. It was deregistered following an amalgamation to form the CFMMEU. By operation of section 76 of the Fair Work (Registered Organisations) Act 2009 the Agreement covers and applies to the CFMMEU.
The Agreement was approved by the Commission on 30 January 2018 and has continued in operation since 6 February 2018.
The Agreement is a single enterprise agreement that applies to employees of Tuftmaster Carpets Pty Ltd, Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd in respect of employees who are members of, or eligible to be members of, the TCFUA (now CFMMEU).
As a result of a corporate restructure in 2018 all employees of Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd had their employment terminated and commenced employment with Tuftex Carpets Pty Ltd.
The CFMMEU became aware from around mid-2021 that Tuftmaster Carpets was not providing all the terms of the Agreement to new, non-transferring employees. Instead, other than rates of pay, the terms of the Textile, Clothing, Footwear and Associated Industries Award 2020 (the Award) were applied.
The application seeks to ensure that new non-transferring employees of Tuftmaster Carpets who are members of, or eligible to be members of, the TCFUA will be covered by the Agreement instead of the Award. Based on the material filed by the CFMMEU I have decided to grant the application, and these are my reasons.
The relevant legislation
Part 2-8 of the Act describes when a transfer of business occurs. It also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.
Section 311(1) defines “transfer of business”, and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to non-transferring employees.
In deciding whether to make orders of this kind, the Commission must consider the factors set out in section 319(3) of the Act.
Consideration
The Agreement was approved by the Commission on 30 January 2018. It is a transferrable instrument for the purposes of section 312(1)(a) of the Act.
I am satisfied that there has been a transfer of business between Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd on the one hand and Tuftex Carpets Pty Ltd for the purposes of section 311(1). This is because:
· the employment of employees of Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd who were covered by the Agreement ceased on or around 4 April 2018;
· the employees commenced employment with Tuftex Carpets Pty Ltd on or around 4 April 2018;
· the work of employees for Tuftex Carpets Pty Ltd is the same as the work they performed for Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd (the transferring work); and
· Tuftex (Dandenong) Pty Ltd and Tuftex (Preston) Pty Ltd and Tuftex Carpets Pty Ltd are related entities.
I am satisfied for the purposes of s.319(2) that the CFMMEU has standing to make the application.
The views of Tuftmaster Carpets and employees who would be affected by the order
In relation to the views of Tuftmaster Carpets, it has advised that it does not oppose the application for an order and would not file any material in response to the application. This is a neutral consideration.
The CFMMEU submits there are currently approximately 10-15 new non-transferring employees engaged by Tuftmaster Carpets, and that they and the transferring employees support the application. This weighs in favour of the order sought being granted.
Whether any employees would be disadvantaged by the order
I am satisfied that the non-transferring employees will not be disadvantaged by the order sought, rather their position will be improved. The Agreement was approved with the Commission being satisfied that the employees would be better off overall than if they remained under the Award. The Agreement contains terms that are more beneficial than under the Award and beneficial terms that are not in the Agreement. This weighs in favour of the order being granted.
The nominal expiry date of the Agreement
The nominal expiry date of the Agreement is 31 August 2020. Negotiations for a new agreement have been occurring for a considerable time, however no agreement has yet been reached. The parties have agreed that the non-transferring employees would come within the scope and coverage of any replacement agreement. This is a neutral consideration.
Whether the Agreement would have a negative impact on productivity; Whether Tuftex Carpets Pty Ltd would incur significant economic disadvantage by coverage of the Agreement
There is no material before me to indicate the order sought would negatively impact productivity at Tuftmaster Carpets or that it would incur any economic disadvantage if it were covered by the Agreement. These are neutral considerations.
Degree of business synergy between the Agreement and other workplace instruments
I am satisfied that there is a high degree of business synergy between the Agreement and the Award. The classification structures are identical, and the coverage of the Award expressly refers to ‘carpets’ in defining the textile industry covered by the Award.
The public interest
There is no material to suggest that granting the application would be contrary to the public interest. I am satisfied that it is not contrary to the public interest to make the order sought.
Conclusion
I am satisfied that the factors I have to consider either weigh in favour of granting the application or are neutral. There are no countervailing considerations that tell against making the order sought. I am satisfied it is appropriate to grant the application.
An Order giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE427154 PR761310>
0
0
0