Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 1684

[2019] FWC 1684

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
(AG2018/6873)

BLOC (ACT) PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	CANBERRA, 15 MARCH 2019

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

[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 (CFMMEU – the Applicant) seeking an order under s.319(1)(b) that the Bloc (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2016 1(the Agreement) covers all non-transferring employees of Bloc Operations Pty Ltd (Bloc) who:

(a) perform work in one of the classifications listed in Agreement; and

(b) were engaged after 1st July 2018, and

(c) perform work in:

(i) the Australian Capital Territory; or

(ii) the City of Queanbeyan; or

(iii) Tumut local government area; or

(iv) Palerang local government area; or

(v) Cooma-Monaro local government area; or

(vi) Yass local government area.

The Statutory framework

[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;

an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover 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 CFMMEU is covered by the Agreement and therefore has standing pursuant to s.319(2)(c) of the Act to make the application for the order sought.

s.319(3)(a)(i) The views of the new employer or a person who is likely to be the new employer

[4] Attached to the CFMMEU’s application was email correspondence from the Chief Financial Officer of Bloc, Ms Natalie Hyde, indicating that Bloc consents to the order sought. 2 This factor supports the making of the order sought.

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

[5] In its application the CFMMEU stated that there were no known current employees who would be affected by the order. In response to a request from the Commission in early 2019 the CFMMEU advised on 21 January 2019 that having contacted Bloc it could confirm that Bloc now employed an unspecified number of non-transferring employees. Against that Background, on 12 February 2019 the Commission made Directions which were to be circulated by Bloc to all non-transferring employees. The Directions set out the orders sought by the CFMMEU and included the following:

“1. These directions are to be made available to all non-transferring employees by no later than close of business Tuesday 19 February 2019.

2. Any employee intending to provide their views on the order sought may do so by providing a written statement to the Fair Work Commission.

3. Written statements are to be supplied by close of business on Monday, 25 February 2019 to…

4. If any employee wishes to be heard, in respect of the application they must advise chambers by email, by no later than close of business on Monday, 25 February 2019.”

[6] No non-transferring employee subsequently provided a written statement outlining their views on the order sought.

[7] As such, there is no material before the Commission suggesting or pointing to any concerns by those employees who would be affected by the order sought regarding the order. This factor supports the making of the order sought.

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

[8] The Applicant submits that the Agreement is significantly more generous then the Building and Construction General On-site Award 2010 3 (the Award) which is the instrument that would otherwise apply to non-transferring-employees. A comparison of the Agreement against the Award indicates, for instance, that under the Agreement an employee classified as a Construction Worker Level 3 is entitled to a base hourly rate of pay of $39.95 whereas under the Award the equivalent rate is $22.04 per hour (exclusive of industry allowance).

[9] This factor supports a finding that any non-transferring employees would not be disadvantaged by making the order.

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

[10] The Agreement has a nominal expiry date of 31 March 2019. The CFMMEU submits that the intention is that the Agreement will continue to operate beyond the expiry date.

[11] I consider this to be a neutral factor given that the Agreement is about to pass its nominal expiry date.

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

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

[12] The CFMMEU contends in respect of these considerations that ensuring all employees are afforded the same terms and conditions cannot reasonably considered to have either a negative impact on productivity of the continuing workplace or be considered to be economically disadvantageous.

[13] I note also that Bloc consents the order sought.

[14] These factors support the making of the order sought.

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

[15] The CFMMEU contends that there is a high degree of synergy between the Agreement and the Award as clause 6.3 of the Agreement incorporates the terms of the Award. This factor supports the making of the order sought.

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

[16] The CFMMEU contends that the only discernible public interest lies in ensuring younger and less experienced workers are not disadvantaged in contrast to their more established peers in the business.

[17] While I note the CFMMEU’s contention, in my view it does not of itself enliven the public interest. As such, there is no material before the Commission pointing to the public interest being enlivened in this case. Accordingly, I consider this factor to be a neutral consideration in this case.

Conclusion

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

[19] The order (PR705857) will be issued to provide that the Agreement will cover the non-transferring employees who perform the same or similar work as transferred employees covered by the Agreement.

Printed by authority of the Commonwealth Government Printer

<AE428423  PR705855>

 1   AE428423

 2   Attachment A to the application

 3   MA000020