Francher Pty Ltd
[2024] FWC 3322
•29 NOVEMBER 2024
| [2024] FWC 3322 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Francher Pty Ltd
(AG2024/4606)
| Hospitality industry | |
| COMMISSIONER P RYAN | SYDNEY, 29 NOVEMBER 2024 |
Application for an order relating to instruments covering non-transferring employees
Francher Pty Ltd (Applicant) has made an application seeking an order pursuant to s.319(1)(b) of the Fair Work Act 2009 (FW Act) that the East End Hotel Enterprise Bargaining Agreement 2023[1](Agreement) will cover non-transferring employees who perform, or are likely to perform, transferring work for the Applicant (Application).
The Agreement was approved on 22 April 2024.[2] The employer covered by the Agreement is SSUT Pty Ltd (SSUT), an associated entity of the Applicant. SSUT operates the East End Hotel in Bundaberg. The Applicant operates the Hay Point Hotel.
On 29 November 2024, several employees of SSUT will be transferred to the Applicant and will perform the same, or substantially the same, work that they performed for SSUT.
Under the transfer of business provisions in the FW Act, the Agreement will cover the Applicant and the employees transferring from SSUT.[3]
The Applicant seeks an order that the Agreement will also cover any non-transferring employees who perform, or are likely to perform, the transferring work from 29 November 2024.
Transfer of Business
Section 311(1) of the FW Act sets out the circumstances in which a transfer of business occurs. It states:
(1)There is a transfer of business from an employer (the old employer ) to another employer (the new employer ) if the following requirements are satisfied:
(a)the employment of an employee of the old employer has terminated;
(b)within 3 months after the termination, the employee becomes employed by the new employer;
(c)the work (the transferring work ) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d)there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
In relation to the relevant connection, s.311(6) of the FW Act states:
(6)There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.
Section 312 of the FW Act defines “transferable instrument” to include “an enterprise agreement that has been approved by the FWC”.
Section 313 of the FW Act provides that “If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer”, then:
“(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer”.
Having regard to the materials before me, I am satisfied that there will be, or is likely to be a transfer of business between the Applicant and SSUT for the purposes of s.311(1) of the FW Act for the following reasons:
(i)The transferring employees of the SSUT will be, or are likely to be employed by the Applicant from 29 November 2024;
(ii)The work of the transferring employees will be the same, or substantially the same, as the work they performed for SSUT; and
(iii)That SSUT and the Applicant are associated entities.
Consideration of the s.319 Application
Section 319 of the FW Act states:
(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 non - transferring employee because of subsection 314(1) does not, or will not, cover the non - transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non - transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non - transferring employee who performs, or is likely to perform, the transferring work for the new employer.
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non - transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non - transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.
I am satisfied that the Applicant is entitled to make the Application,[4] which relies upon the terms of s.319(1)(b) of the FW Act to, in effect, extend the coverage of the Agreement to non-transferring employees.
In deciding whether to make an order pursuant to s.319(1)(b) of the FW Act, the Commission must take into account the matters set out in s.319(3). I now turn to a consideration of each of those matters.
Views of the new employer – s.319(3)(a)(i)
The Applicant is the new employer, who seeks, and is supportive of, the proposed orders. This weighs in favour of making the proposed orders.
Views of the employees who would be affected by the order – s.319(3)(a)(ii)
Prior to making the Application, the Applicant met with the affected employees and advised them that the Application will be made and the reasons for that. Following the matter being allocated to my Chambers, I sought the views of the transferring employees. No employees sought to provide their views directly to the Commission. This weighs in favour of making the proposed orders.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.319(3)(b)
I am satisfied that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment by the making of the proposed orders. This weighs in favour of making the proposed orders.
The nominal expiry date of the agreement – s.319(3)(c)
The nominal expiry date of the Agreement is 22 April 2028. I consider this a neutral factor in relation to the making of the proposed orders.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.319(3)(d)
I am satisfied that there will be no negative impact on productivity if the order is made. In contrast, if the order is not made and the transferring employees and non-transferring employees are subject to different terms and conditions of employment, this may have a negative impact on employee engagement and in turn upon workplace productivity. This weighs in favour of making the proposed orders.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.319(3)(e)
The Agreement’s coverage of non-transferring employees will not cause any significant economic disadvantage. I consider this a neutral factor in relation to the making of the proposed orders.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.319(3)(f)
The granting of the order will result in a greater degree of synergy for the Applicant and the employees who perform the transferring work, as all employees in that part of the Applicant’s business will be employed pursuant to a single instrument. This weighs in favour of making the proposed orders.
The public interest – s.319(3)(g)
Having regard to all the material before me, I am not of the view there are public interest reasons that weigh against making the proposed orders.
Conclusion
Taking in to account the matters to be considered in section 319(3) of the FW Act, I am satisfied that it is appropriate that the Application be granted. An Order [PR781859] to that effect will be issued in conjunction with this decision.
COMMISSIONER
[1] AE524369.
[2] SSUT Pty Ltd T/A East End Hotel [2024] FWCA 1497 at [5].
[3] See s.313 of the FW Act.
[4] See s.319(2)(a) of the Act.
Printed by authority of the Commonwealth Government Printer
<AE524369 PR781858>
0
0
0