DM & MT Nolan Pty Ltd

[2012] FWA 7234

[2012] FWA 7234

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.319— Applications for orders re instruments covering new employer and non-transferring employees in agreements

DM & MT Nolan Pty Ltd
(AG2012/6752)

DM & MT Nolan Pty Ltd
(AG2012/6753)

DM & MT Nolan Pty Ltd
(AG2012/6754)

DM & MT Nolan Pty Ltd
(AG2012/6755)

DM & MT Nolan Pty Ltd
(AG2012/6756)

DM & MT Nolan Pty Ltd
(AG2012/6757)

Various industries
COMMISSIONER HARRISON	SYDNEY, 23 AUGUST 2012

Orders relating to instruments covering new employer and transferring employees.

[1] This decision concerns six applications filed by DM & MT Nolan Pty Ltd trading as Nolans Interstate Transport (Nolans) for orders pursuant to s.319 of the Fair Work Act 2009 (the Act).

[2] The non transferring employees of Nolans are bound by the following instruments:

• Nolstaff (Gatton) Enterprise Agreement 2009;



• Nolstaff (Administration) Enterprise Agreement 2010;



• Nolstaff (NSW Depot) Enterprise Agreement 2011;



• Nolstaff (Workshop) Enterprise Agreement 2010;



• Nolstaff Employee Collective Agreement 2008 (Interstate); and



• Nolstaff (Vic Depot) Enterprise Agreement 2009;

[3] In its grounds of support for orders it was stated:

“Nolans has an unwritten arrangement with Payroll Co in which Nolans allows Payroll Co to use Nolans premises and the equipment used by the employees at its various premises.

Nolans intends to cancel the outsourcing arrangements with Payroll Co for the Agreements by notifying all employees and making offers of employment to all staff covered by the Agreements which will:

• be on terms and conditions substantially similar to, and considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with Payroll Co; and



• recognise the employee’s service with Payroll Co for the purpose of redundancy pay, annual leave, personal/carer’s leave, long service leave and other service based entitlements




A transfer of business pursuant to section 311(1) of the Fair Work Act will occur upon employees accepting offers of employment from Nolans, provided the employees become employed by Nolands within 3 months after the termination, which is likely.”

[4] Solicitors for Nolans served copies of the applications on the relevant employees and the Transport Workers’ Union of Australia (TWU) National Office and its Queensland, New South Wales and Victorian Branches on 18 June 2012.

[5] The applications were listed in Brisbane on 20 June 2012 but the hearing was subsequently cancelled at the request of Nolans to allow the matter to be dealt with on the papers.

[6] On 26 June the TWU QLD Branch wrote to Nolans’ solicitors raising a number of issues concerning rosters, overtime and average hours of work. The TWU questioned whether the transferring employees would be better off by working under the Modern Award. It sought further information regarding its concerns which were subsequently provided. In so doing, Nolans gave an undertaking to increase the rate of pay of a Forklift driver by 20 cents per hour.

[7] By way of correspondence dated 22 August 2012 the TWU acknowledged the undertaking and advised it would not oppose the application for orders under s.319(1)(b) of the Act.

[8] Section 319(3) states that in deciding whether to make an order, FWA 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.

(h) such other grounds and reasons as Fair Work Australia may deem met.”

[9] Having considered the matters set out in s.319(3) of the Act, I am satisfied the orders should be issued.

[10] The orders to be published as PR528267, PR528268, PR528269, PR528270, PR528271 and PR528272 will come into operation on 24 August 2012.

COMMISSIONER

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<Price code A,  PR528254>