CW Management Pty Ltd T/A CW Management

[2020] FWC 5205

[2020] FWC 5205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

CW Management Pty Ltd T/A CW Management
(AG2020/2647)

COMMISSIONER CIRKOVIC MELBOURNE, 28 SEPTEMBER 2020

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

[1] On 4 September 2020, CW Management Pty Ltd (the Applicant) made five applications pursuant to section 319 of the Fair Work Act 2009 (Cth) (the Act) seeking that the Fair Work Commission (the Commission) make orders that the following agreements will cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work as a consequence of a restructure of Chemist Warehouse’s business:

•  Victorian H & B Distribution Enterprise Agreement 2019;

•  Western Australia H & B Distribution Enterprise Agreement 2018;

•  South Australian H & B Distribution Enterprise Agreement 2018;

•  Queensland H & B Distribution Enterprise Agreement 2019; and

•  New South Wales H & B Distribution Enterprise Agreement 2018.

(collectively, Transferable Instruments)

[2] On 7 September 2020, the matter was allocated to my chambers for consideration.

[3] On 15 September 2020, a mention was held which was attended by representatives of the Applicant.

[4] Later that day, my chambers issued directions which, amongst other things, invited employees or employee organisations to contact my chambers with any objection to these applications by 22 September 2020. No objections were received.

Background

[5] The following matters do not appear to be in dispute.

[6] I am satisfied that the Applicant has standing to bring this application as a likely new employer under section 319(2)(a) of the Act.

[7] The Applicant, together with another entity (H&B Distribution), provides outsourced supply chain services for Chemist Warehouse. Both of these entities have a degree of common ownership. As part of a restructure of the Chemist Warehouse business it has been decided that, in essence, supply chain services previously performed by H&B Distribution will be performed by the Applicant.

[8] As a result of this change, the Applicant has sought orders under section 319 that each of the Transferable Instruments that previously applied to H&B Distribution be applicable to non-transferring employees. The Applicant has indicated that, if the orders it seeks are made, it will be engaging all the employees of H&B Distribution in performing the same role for the Applicant.

[9] On the material before me I am satisfied that, absent the orders sought, the Transferable Instruments will not cover non-transferring employees of the Applicant in relation to the transferring work by reason of section 314 of the Act as they appear to be covered by the Storage Services and Wholesale Award (Award).

Consideration

[10] The discretion to make the orders sought by the Applicant will only be exercised after taking into account the matters enumerated in section 319(3).

[11] The views of the Applicant are clear. It supports the making of the orders and says that absent the making of the orders the terms and conditions of employment for effected employees would be regulated by the Award. The Applicant submits that the terms and conditions provided for under the Transferable Instruments are “overall more beneficial than the Award” and that it would be “administratively burdensome to apply two different industrial instruments”.

[12] The United Workers’ Union (UWU) are a party to the Victorian H & B Distribution Enterprise Agreement 2019 and Queensland H & B Distribution Enterprise Agreement 2019. The UWU have made no submissions in relation to these applications.

[13] At the mention, the Applicant confirmed that there were currently no non-transferring employees engaged by the Applicant.

[14] I am satisfied that non-transferring employees would not be disadvantaged in relation to their terms and conditions of employment because absent the orders sought, such employees would be covered by the Award. Each of the Transferable Instruments provides for terms and conditions of employment superior to the Award. Furthermore, the nominal expiry dates for the Transferable Instruments are 11 April 2023, 19 February 2022, 19 February 2022, 11 April 2023 and 19 February 2022. I have given consideration to this in making my decision.

[15] It is not suggested by the Applicant or UWU that coverage by the Transferable Instruments of non-transferring employees would have a negative impact on the productivity of workplaces where it would operate. As to the question of business synergy, I accept that if non-transferring employees are not covered by the transferable instruments that this would have a negative impact on the flexibility of the Applicant’s workplaces covered by the Transferable Instruments and that business synergy would be enhanced by the making of the orders sought. I am also satisfied that it is not contrary to the public interest to make the orders that the Applicant seeks.

Conclusion

[16] Taking into account each of the matters set out in section 319(3) and the material outlined above, I am satisfied that the orders sought should be granted.

[17] Orders giving effect to this decision will be issued separately.

COMMISSIONER

Appearances:

Mr R. Levin of Mills Oakley for the Applicant

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