Entco Australia Pty Ltd T/A Hewlett Packard Enterprise

[2017] FWC 2354

[2017] FWC 2354

FAIR WORK COMMISSION

DECISION

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

Entco Australia Pty Ltd T/A Hewlett Packard Enterprise
(AG2017/1458)

Business equipment industry
COMMISSIONER CAMBRIDGE	SYDNEY, 15 MAY 2017

Application for an Order relating to instruments covering new employer and transferring employees.

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by Entco Australia Pty Limited trading as Hewlett Packard Enterprise (Hewlett Packard Enterprise or the Applicant). Hewlett Packard Enterprise Company (HPE) is the ultimate parent company of the Applicant and operates an Australian subsidiary known as Hewlett-Packard Australia Pty Ltd (HPEA).

[2] The application was lodged at Sydney on 26 April 2017. The application seeks an Order from the Fair Work Commission (the Commission) relating to HPEA which is a related body corporate of the Applicant.

[3] The application contains grounds and submissions which, in relevant summary, contend that:

• HPEA currently employs 87 personnel in its Software Business unit (the Transferring Employees), and following plans for the creation of a global software company dedicated to delivering and supporting enterprise software solutions, the Applicant will be responsible for the conduct of the Australian Software Business unit previously operated by HPEA. Currently, the 87 employees are employed by HPEAunder the terms of the EDS People Agreement 2002 and the One HPA Certified Agreement 2004-2007 (the transferable instruments);



• The Transferring Employeeshave been offered and accepted employment with the Applicant;



• The employment of any person performing the work that the Transferring Employees will perform with the Applicantis to be regulated by a common law contract of employment containing terms and conditions offered bythe Applicantas part of an offer of on-going employment, which includes a contractual commitment to a number of preserved benefits that were contained in the Transferrable Instruments, as well as overall application of the Business Equipment Award 2010 and the Professional Employees Award 2010.

• There is an association between HPEA and the Applicantand a transfer of business from HPEA to the Applicantin satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur when the Transferring Employees commence employment with the Applicant as is anticipated;

• The terms and conditions of employment for the Transferring Employees with the Applicantare considered to be, over time, more beneficial overall for the Transferring Employees than the terms applicable under the transferable instruments; and



• In the absence of the Order sought by the application, the transferable instruments would be likely to cover the Transferring Employees and bind the Applicantas a new employer.

[4] The matter was listed for a Hearing in Chambers on 15 May 2017. Lawyers acting on behalf of the Applicant have filed a number of statements in support of the application (the Statements). A number of the Statements have been made by Transferring Employees.

[5] In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application, together with the evidence provided by the Statements.

[6] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“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;

(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.

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.”

[7] The Commission has reviewed the application documentation and the accompanying materials including the Statements. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[8] Having examined and considered the application, and the accompanying materials including the Statements, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted, and Orders [PR592500] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

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