Express Freighters Australia (Operations) Pty Limited; Eastern Australia Airlines Pty Limited; Tim Entwisle

[2013] FWC 5071

[2013] FWC 5071

FAIR WORK COMMISSION

DECISION

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

Express Freighters Australia (Operations) Pty Limited; Eastern Australia Airlines Pty Limited; Tim Entwisle
(AG2013/7701)

Airline operations
COMMISSIONER CAMBRIDGE	SYDNEY, 29 JULY 2013

Application for Orders 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 Express Freighters Australia (Operations) Pty Limited (EFA); Tim Entwisle and Eastern Australia Airlines Pty Limited (Eastern).

[2] The application was lodged at Sydney on 19 July 2013. The application seeks an Order from the Fair Work Commission (the Commission) relating to First Officer Tim Entwisle who is an employee of Eastern and a prospective employee of EFA.

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

● Tim Entwisle has been employed by Eastern since April 2010 under the terms of the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2010 (the Eastern Agreement);

● Tim Entwisle has been offered and he has accepted employment with EFA;

● There is an association between Eastern and EFA and a transfer of business from Eastern to EFA in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur when Tim Entwisle commences employment with EFA as is anticipated;

● The terms and conditions of employment for Tim Entwisle with EFA are considered to be more beneficial for Tim Entwisle than the terms applicable under the Eastern Agreement; and

● In the absence of the Order sought by the application the Eastern Agreement would be likely to cover Tim Entwisle as a transferring employee and bind EFA as a new employer.

[1] The matter was listed for a Hearing in Chambers on 29 July 2013. 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.

[2] 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.”

[3] The Commission has reviewed the application documentation and the accompanying materials. 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.

[4] Having examined and considered the application and its accompanying materials, 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 [PR539438] broadly in accordance with the terms sought will be issued accordingly.

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