DECISION

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

Dentsply Sirona Pty Ltd T/A Dentsply Sirona
(AG2017/163)

COMMISSIONER ROE

MELBOURNE, 31 JANUARY 2017

Application for order relating to instruments covering new employer and non-transferring employees; DENTSPLY (Australia) Pty Ltd & National Union of Workers Collective Agreement 2016-2019.

[1] Dentsply Sirona Pty Ltd (DS) has purchased all shares in Denstply Australia Pty Ltd. As a result DS now employs those previously employed by Dentsply Australia Pty Ltd. The work of the employees has not significantly changed. There was a transfer of business in accordance with Section 311 of the Fair Work Act 2009 (the Act). The transferring employees are covered by the transferable instrument, the DENTSPLY Australia Pty Ltd & National Union of Workers Collective Agreement 2016-2019. The nominal expiry date of the Agreement is 31 March 2019.

[2] DS will employ new employees who will perform work covered by the transferable instrument (non-transferring employees). If an order is not made under Section 319 of the Act as sought by DS these employees will remain covered by the Storage Services and Wholesale Award 2010. The transferring work is the work which will be performed by those non-transferring employees who will be covered by the Agreement if the Order is made.

[3] I am satisfied that the terms of the Agreement significantly advantage employees when compared to the Award. For example, rates of pay are higher, redundancy provisions are superior, and superannuation entitlements are better.

[4] On 23 January 2017 I wrote to DS as follows:

“The Commissioner is prepared to deal with the matter on the papers without the need for a hearing. The matter would be listed for in chambers hearing but there will be no requirement for attendance. Prior to making the decision the Commissioner requests written confirmation from the NUW (by email) that they support the application and confirmation from the employer that they have provided written notice to any non-transferring employee advising them that the application has been made and of the Commissioner’s intention to approve the application and that if they have any objection they must contact Chambers.roe.c@fwc.gov.au by no later than 29 January 2017.”

[5] The NUW is covered by the Agreement and they have provided written support of the application. No employee advised that they had any objection to the application.

[6] I have considered the matters set out in Section 319(3) of the Act. I am satisfied that:

(a) The employer supports the application because it will provide consistency of terms and conditions for its employees.

(b) No employee will be disadvantaged by the order.

(d) There will be positive impacts on transferring employees and no negative impact on productivity.

(e) There is no significant economic disadvantage to the employer as all current employees are covered by the instrument.

(f) Avoiding multiple workplace instruments will improve business synergy.

(g) It is in the public interest for employees to have access to superior and consistent terms and conditions and a collectively bargained agreement.

[7] The factors in Section 319(3) support the making of the Order sought pursuant to Section 319(1)(b). In weighing the factors considered above I would have regard to the Object of Part 2-8 - Transfer of Business of the Act as set out in Section 309. That requires me to balance the protection of employees and the efficient running of business.

[8] I am satisfied that the Order should be made in accordance with Section 319(1)(b) that the DENTSPLY Australia Pty Ltd & National Union of Workers Collective Agreement 2016-2019 covers or will cover non-transferring employees who perform or are likely to perform the transferring work for the new employer, Dentsply Sirona Pty Ltd. The Order will operate from today’s date.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The dispute between Dentsply Sirona Pty Ltd, trading as Dentsply Sirona, and the National Union of Workers (the Union) was heard in the Fair Work Commission. The primary issue concerned the interpretation and application of the DENTSPLY (Australia) Pty Ltd & National Union of Workers Collective Agreement 2016-2019, specifically regarding the continued coverage of certain employees under instruments that were in effect prior to a change in employment arrangements. The Union argued that the transfer of employees to a new employer should not affect the terms of their employment, including their coverage under existing agreements, while Dentsply Sirona contended that the new employment relationship should be governed by new terms and conditions.

The Commission carefully considered the wording of the collective agreement and the legal principles governing the transfer of employees under the Fair Work Act 2009. It examined whether the agreement explicitly or implicitly extended its coverage to the new employer and the non-transferring employees. The Commission also looked at the intentions of the parties when entering into the agreement and the implications of the transfer of business under Australian labour law. Ultimately, the Commission determined that the collective agreement did not extend its coverage to the new employer and the non-transferring employees, and therefore, the terms of the agreement did not apply to them.

Based on its findings, the Commission made orders that clarified the scope of the collective agreement and its application to the new employment arrangements. The new employer and the non-transferring employees were not bound by the terms of the DENTSPLY (Australia) Pty Ltd & National Union of Workers Collective Agreement 2016-2019, and the agreement's coverage was limited to the original employees and employer. The Commission's decision provided certainty for both parties and helped to ensure compliance with the applicable employment laws.

Dentsply Sirona Pty Ltd T/A Dentsply Sirona

DECISION

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Background to the litigation

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Legal Principle Established