Fujitsu Australia Limited

[2016] FWC 1491

[2016] FWC 1491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768AX - Application to vary copied State instruments

Fujitsu Australia Limited
(AG2016/2402)

COMMISSIONER BOOTH BRISBANE, 31 MARCH 2016

Vary copied State instrument in relation to transferring employees.

[1] An application under s.768AX of the Fair Work Act 2009 (the Act) for an order relating to instruments covering a new employer and transferring employees was filed by Fujitsu Australia Limited (Fujitsu) on 26 February 2016.

[2] Fujitsu seeks an order to vary the terms of the Gold Coast City Council Certified Agreement 2012 insofar as it applies to them. The transferring employees from The City of Gold Coast (CoGC) intends to outsource its Information Technology section which is made up of permanent employees and contractors. Fujitsu is entering into a contract with the CoGC to be the provider of this service.

Background

[3] Fujitsu is a constitutional corporation and a national system employer. CoGC is a State Local Government employer. The Information Technology employees that will transfer will be performing the same work, or substantially the same, as the work they performed for the old State employer.

[4] The intention of the relevant parties is that the Information Technology staff recruited by Fujitsu who transfer from CoGC would be offered employment with them on the basis that their terms and conditions of employment would be regulated by the Copied State Agreement.

[5] The orders sought by Fujitsu have the effect of affirming that the former employees of CoGC who become employees of Fujitsu will not be covered by the Business Equipment Award 2010 and the Professional Employees Award 2010 but by, what will be known as, the Gold Coast City Council COPIED STATE Certified Agreement 2012 (Copied State Agreement), as varied.

The legislation

[6] The application is made pursuant to s.768AX of the Act, which allows the Fair Work Commission (the Commission) to make an order that a copied State instrument for a transferring employee(s) will cover the transferring employee(s).

[7] The matters the Commission must take into account in determining whether to make the above order is set out in s.768AX(3):

“Matters that the FWC must take into account

In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(b) whether any employees would be disadvantaged by the copied state instrument in relation to their terms and conditions of employment;

(c) if the copied State instrument is a copied State employment agreement-the nominal expiry date of the agreement;

(d) whether the copied State instrument, without variation, 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 copied State instrument without the variation;

(f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

(g) the public interest.”

[8] I turn now to consider these factors.

Relevant Factors

[9] As the new employer or likely new employer, Futjitsu is able to make an application of the present type under s.768AX(2). The order sought by Fujitsu is within the scope of this section of the Act.

[10] A statutory declaration provided by Nikki Mortimer, Human Resources Business Leader on behalf of Fujitsu states that the application is made following:-

● Both CoGC and Fujitsu provided information and consulted with the transferring employees;

● the 7 employees who are transferring their employment have provided statutory declarations indicating their support;

● the views of the:-

Queensland Services, Industrial Union of Employees;
Association of Professional Engineers, Scientists and Managers, Australia, The;
Australian Workers' Union of Employees, Queensland, The;
Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland, The;
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland;
Transport Workers' Union of Australia, Union of Employees (Queensland Branch);
Plumbers and Gasfitters Employees' Union Of Australia, Queensland Branch, Union of Employees; and
Electrical Trades Union of Employees Queensland, The

were sought and no objections were raised and there were no requests to be heard on the matter.

● a Memorandum of Understanding has been signed by Fujitsu, CoGC and Queensland Services, Industrial Union of Employees; and

● the Queensland Services, Industrial Union of Employees confirmed in writing that it does not oppose the application nor does it wish to be heard on the matter.

[11] The Copied State Agreement as varied provides terms and conditions of employment which are more in line with the working arrangements of Fujitsu and as set out in the Awards. Any disadvantage to the transferring employees is compensated by payment of a working hours allowance and a superannuation transfer allowance. I consider that the transferring employees in the new ICT structure would not be disadvantaged as a result of being covered by the Copied State Agreement.

Conclusion

[12] I have considered the matters set out in the relevant sections of the Act and I am satisfied on the basis of supporting documentation provided with the Application and the additional material provided that the orders should be issued.

[13] Further, as the flexibility and consultation terms do not meet the requirements of the Act, the model flexibility and consultation term is taken to be a term of the Copied State Agreement and is attached to the varied Copied State Agreement.

[14] The Application is granted and an Order in the terms sought will be issued accordingly.

COMMISSIONER

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