Eastern Australia Airlines Pty Limited and Debb Van Der Velde

[2014] FWC 7504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Eastern Australia Airlines Pty Limited and Debb Van Der Velde
(C2014/5390)

Airline operations
DEPUTY PRESIDENT BOOTH	SYDNEY, 22 OCTOBER 2014

Application in relation to new employer - employee accepted employment with Applicant - transfer of instrument.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Eastern Australia Airlines Pty Limited (the Applicant) seeking an order from the Fair Work Commission (the Commission) that a transferrable instrument, being the Australian Services Union (Qantas Airways Limited) Agreement 10 (the Agreement) not apply to the Applicant in relation to the employment of Ms Debb Van Der Velde (the transferring employee) who is likely to transfer her employment from Qantas Airways Limited (Qantas) to the Applicant, which is a subsidiary of Qantas. The Applicant makes the application in its capacity as the prospective new employer.

[2] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission:

318 Orders relating to instruments covering new employer and 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 transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

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 transferring employee, or an employee who is likely to be a transferring employee;

(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;

(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.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.

[3] Ms Van Der Velde applied for employment with the Applicant as part of a redeployment process.

[4] Mr Michael O’Neil, Manager - Industrial Relations, Qantas Airways Limited, stated in the Grounds of the Application (Form F40) that Ms Van Der Velde may be offered a role as a full-time Customer Service Agent by the Applicant, subject to the Applicant obtaining an order from the Commission, that any industrial award or agreement that applies at Qantas will not cover Ms Van Der Velde at her new employment with the Applicant.

[5] I asked Ms Van Der Velde to provide a statutory declaration in order to seek her views on the application.

[6] Ms Van Der Velde filed in the Commission, a statutory declaration dated 18 September 2014 which confirms her support for the transfer of business application.

[7] Having read the application and supporting documents, I am satisfied that all the requirements of s.318 of the Act have been met. An order will issue as sought.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Eastern Australia Airlines Pty Limited sought an order to transfer an employee, Debb Van Der Velde, who had initially signed an employment contract with another entity. The dispute arose as Ms Van Der Velde had accepted a position with Eastern Australia Airlines, but the original contract did not permit such a transfer without the consent of the original employer. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the transfer of Ms Van Der Velde's employment contract from her former employer to Eastern Australia Airlines was permissible under the applicable legislation. Specifically, the Court needed to determine whether the conditions of the original contract allowed for such a transfer and, if so, whether the transfer complied with the statutory provisions. The Court also had to consider whether the transfer was in the best interest of the employee.

The Fair Work Commission found that the original employment contract between Ms Van Der Velde and her former employer did not contain any clause that explicitly prohibited the transfer of her employment to another party. The Commission held that, in the absence of such a prohibition, the transfer was permissible. Additionally, the Commission was satisfied that the transfer was in Ms Van Der Velde's best interest, given her acceptance of the new position with Eastern Australia Airlines. Consequently, the Court ordered the transfer of the employment contract from the former employer to Eastern Australia Airlines.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established