Gamuda Engineering Pty Ltd
[2023] FWC 1002
•28 APRIL 2023
| [2023] FWC 1002 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Gamuda Engineering Pty Ltd
(AG2023/992)
| Building, metal and civil construction industries | |
| COMMISSIONER MCKINNON | SYDNEY, 28 APRIL 2023 |
Application for an order relating to instruments covering new employer and non-transferring employees
Gamuda Engineering Pty Ltd (Gamuda Engineering) has applied for an order under section 319 of the Fair Work Act 2009 (the Act) to the effect that the Gamuda (Australia) Branch Sydney Metro West – Western Tunnelling Package, AWU Greenfield Agreement 2022-2026 (the Agreement) will cover Gamuda Engineering in relation to new non-transferring employees of Gamuda Engineering who perform work covered by the classifications set out in the Agreement.
The Agreement currently covers Gamuda (Australia) Branch, which is the parent company for Gamuda Engineering. The intention is that Gamuda Engineering will now be the main operating entity for the business’ Australian operations. As a result, employees from Gamuda (Australia) Branch will transfer to Gamuda Engineering on or about 1 May 2023. The decision to transfer employees from Gamuda (Australia) Branch to Gamuda Engineering was communicated to transferring employees on or about 6 April 2023.
The purpose of the application is to ensure that new non-transferring employees of Gamuda Engineering who perform work that is covered by the Agreement will also be covered by the Agreement instead of the Building and Construction General On-site Award 2020 (the Award). As the transfer of employment has not yet occurred, there are no non-transferring employees performing the transferring work.
I have decided to grant the application. These are my reasons.
The relevant legislation
Part 2-8 of the Act describes when a transfer of business occurs. It also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.
Section 311(1) defines “transfer of business”, and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to non-transferring employees.
In deciding whether to make orders of this kind, the Commission must take into account the factors set out in section 319(3) of the Act.
Consideration
The Agreement was approved by the Commission on 11 August 2022. It is a transferable instrument for the purposes of section 312(1)(a) of the Act.
I am satisfied that there is likely to be a transfer of business between Gamuda (Australia) Branch and Gamuda Engineering for the purposes of section 311(1). This is because:
the employment of employees of Gamuda (Australia) Branch will cease on 30 April 2023 and the employees will be re-employed by Gamuda Engineering on or about 1 May 2023,
the work of the transferring employees for Gamuda Engineering will be the same as the work they currently perform for Gamuda (Australia) Branch, and
Gamuda (Australia) Branch and Gamuda Engineering are associated entities.
The views of Gamuda Engineering and employees affected by the order
Sianne Bennett, Head of Human Resources for Gamuda Engineering, has expressed the view on behalf of Gamuda Engineering that new non-transferring employees will be better off overall if they are covered by the Agreement than if they were to remain covered by the Award. I accept the submission, which is consistent with the decision of the Commission on 11 August 2022[1] to approve the Agreement on grounds including that it passed the better off overall test. At the time the application was made, there were no non-transferring employees affected by the proposed order, as the transfer of business has not yet occurred and accordingly, no non-transferring employees have yet been employed by Gamuda Engineering.
On 29 March 2023, the Australian Workers’ Union (AWU) was advised of the proposal to transfer the employment of employees from Gamuda (Australia) Branch to Gamuda Engineering. The AWU supports the application.
Whether any employees would be disadvantaged by the order
Transferring employees will not be disadvantaged by the orders sought as it will have no effect on them. New non-transferring employees performing work covered by the Agreement will see their position improved by coverage of the Agreement instead of the Award.
The nominal expiry date of the Agreement
The nominal expiry date of the Agreement is 30 January 2026.
Whether the Agreement would have a negative impact on productivity at Gamuda Engineering
Gamuda Engineering submits that there is no foreseeable negative impact on productivity if the orders are made. The Agreement currently covers and applies to Gamuda (Australia) Branch’s directly employed civil and tunnel workers at the Sydney Metro West – Western Tunnelling Package Project. The application seeks to ensure that this remains the position upon the transfer of business to Gamuda Engineering.
I am satisfied that granting the orders will promote productivity, efficiency and workplace harmony by reducing the administrative burden on Gamuda Engineering while ensuring that employees performing the same work have the same minimum terms and conditions of employment.
Whether Gamuda Engineering would incur significant economic disadvantage by coverage of the Agreement
Gamuda Engineering submits that there will be no economic disadvantage if the Agreement covers both transferring and non-transferring employees, as budgets for directly engaged workers have been set on the assumption that the Agreement will cover all relevant employees, including non-transferring employees.
Degree of business synergy between the Agreement and other workplace instruments
Gamuda Engineering operates in the building, metal and civil construction industries. There is a high degree of business synergy between the terms and conditions of the Agreement and the Award. Gamuda Engineering attests to the fact that it is not currently covered by any other enterprise agreement that applies to civil and tunnel workers on the Sydney Metro West – Western Tunnelling Package Project. There is nothing before me to contradict the assertion and accordingly, I accept it.
The public interest
There is no indication on the materials to the effect that granting the application would adversely affect the public interest. I am satisfied that it is not contrary to the public interest to make the orders sought.
Conclusion
For the reasons above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.
Order [PR761453] will issue separately to this decision.
COMMISSIONER
Hearing details:
Determined on the papers.
[1] Gamuda (Australia) Branch Sydney Metro West – Western Tunnelling Package, AWU Greenfield Agreement 2022-2026 [2022] FWCA 2718.
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