Foxtel Management Pty Ltd

[2015] FWC 7031

[2015] FWC 7031

FAIR WORK COMMISSION

DECISION

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

Foxtel Management Pty Ltd
(AG2015/5786)

Broadcasting and recorded entertainment industry
COMMISSIONER CAMBRIDGE	SYDNEY, 16 OCTOBER 2015

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 Foxtel Management Pty Limited (Foxtel), in respect of its decision to “insource” services currently provided by Salesforce Australia Pty Ltd (Salmat) and Aida Sales and Marketing Pty Ltd (Aida) in operating retail kiosks, located in shopping centres around Australia, where customers can purchase Foxtel services (Outsourced Services).

[2] The application was lodged at Sydney on 6 October 2015. The application seeks an Order from the Fair Work Commission (the Commission) relating to employees of Salmat who are prospective employees of Foxtel (the Transferring Employees).

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

• The Transferring Employees are currently employed by Salmat under the terms of the Right of Way 2003 certified agreement(the Salmat Agreement);



• The Transferring Employees also include personnel not directly engaged by Aida, but supplied through labour hire arrangements with Certica Pty Ltd, performing the Outsourced Services, and are not covered by a certified or approved agreement.



• The Transferring Employees are to begin employment with Foxtel on 25 October 2015;

• There is an association between Foxtel and Salmat, and a transfer of business from, relevantly, Salmat to Foxtel in 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 Foxtel as is anticipated;

• The Transferring Employees from Salmat would continue to be covered by the Salmat Agreement after they commence with Foxtel, and the Transferring Employees from Aida, who perform the transferring work, will be covered by the General Retail Industry Award 2010 (the Retail Award); and



• In the absence of the Order sought by the application, the Salmat Agreement would be likely to cover the Transferring Employees, and bind Foxtel as a new employer.

[4] The matter was listed for a Hearing in Chambers on 16 October 2015. 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.

[5] 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.”

[6] The Commission has reviewed the application documentation and the accompanying materials in particular, the Affidavit of Gudrun Elms dated 6 October 2015. 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.

[7] Consequently, the Commission is satisfied that the relevant legislative requirements have been met. The Commission has taken into account the factors contained in sub-section 318(3) of the Act and has decided to grant the application and Orders [PR572843] sought.

COMMISSIONER

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<Price code A, AE413582  PR572842 >