Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 7587

[2019] FWC 7587

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
(AG2019/4009)

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	CANBERRA, 4 NOVEMBER 2019

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

[1] This decision concerns an application made pursuant to s.319 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant – CFMMEU) seeking an order that the K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour, Site Cleaning and Traffic Management Sector Agreement 2016 (the Agreement) 1, a transferrable instrument, applies to new, non-transferring, employees of Lack Group Constructions Traffic Pty Ltd (Lack Group) who perform, or are likely to perform, transferring work within the scope of the Agreement.

Relevant legislation

[2] Section 319 of the Act provides as follows:

“319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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.”

[3] Before turning to consider each of the matters specified in s.319(3) of the Act, I note that the Applicant is covered by the K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour, Site Cleaning and Traffic Management Sector Agreement 2016 (the Agreement) 2 and has standing pursuant to s.319(2)(c) of the Act to make the application for the orders sought.

s.319(3)(a)(i) The views of the new employer

[4] Lack Group has confirmed by email to my chambers on 31 October 2019 that it both supports and consents to the proposed order.

s.319(3)(a)(ii) The views of the employees who would be affected by the order

[5] The Applicant submits that it and Lack Group have consulted with the transferring employees who do not object to the proposed order.

s.319(3)(b) Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[6] The Applicant submits that no employee would be disadvantaged by the proposed order in relation to their terms and conditions of employment. The Applicant states that Lack Group is not covered by any other industrial instrument meaning that in the absence of the order sought the Building and Construction General On-site Award 2010 (the Award) 3 would apply to new, non-transferring employees in respect of the transferring work. The Agreement provides for conditions of employment which are substantially more beneficial than the Award. For instance, a comparison of the Agreement against the Award indicates that the rates of pay provided for under the Agreement are between $11.61 per hour to $17.38 per hour above the equivalent Award rate of pay. This supports the making of the order sought.

s.319(3)(c) The nominal expiry date of the agreement

[7] The Agreement has a nominal expiry date of 31 March 2020. The Applicant submits that it would be more convenient for Lack Group to have a single agreement covering both transferring and non-transferring employees who perform the transferring work for this period. I note that new non-transferring employees will have the opportunity to seek to bargain for a new agreement should they wish to do so in the first half of 2020. These considerations favour the making of the order sought.

s.319(3)(d) Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[8] The Applicant submits that there is no evidence that the transferring instrument will have a negative impact on productivity and it would be more efficient for the Lack Group to have a single industrial instrument which covers its entire workforce.

s.319(3)(e) Any significant economic disadvantage to the new employer

[9] The Applicant submits that there is no evidence that Lack Group will incur any economic disadvantage as a result of the transferring instrument covering them in relation to non-transferring employees. I note also that Lack Group consents to the proposed order.

s.319(3)(f) The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[10] The Applicant contends that there is a high degree of synergy between the Agreement and the Award as the Agreement incorporates the terms of the Award.

s.319(3)(g) The public interest

[11] The Applicant submits that that the making of the order will ensure that the employer is able to affect a smooth and efficient transfer of business without disruption to existing employment arrangements and ensure that non-transferring employees are not disadvantaged in contrast to their more established peers in the business and therefore it is in the public interest to issue the order.

[12] There is no material before the Commission which points to it being against the public interest to issue the order sought.

Conclusion

[13] Taking into account each of the matters set out in s.319(3), I am satisfied that the order sought should be made.

[14] The order (PR713978) will be issued to provide that the Agreement will cover new non-transferring employees who perform the same or similar work as the transferred employees.

Printed by authority of the Commonwealth Government Printer

<AE421426  PR713975 >

 1   AE421426

 2   Ibid

 3   MA000020