Glen Cameron Pty Ltd T/A Glen Cameron Couriers

[2021] FWC 5966

[2021] FWC 5966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
s.319 Application for an order relating to instruments covering new employer and non-transferring employees

Glen Cameron Pty Ltd T/A Glen Cameron Couriers
(AG2021/7472)

Road transport industry
COMMISSIONER LEE	MELBOURNE, 23 SEPTEMBER 2021

Application for orders relating to instruments covering new employer, transferring employees and non-transferring employees

[1] An application has been made by Glen Cameron Pty Ltd T/A Glen Cameron Couriers (the Applicant) to the Fair Work Commission (the Commission) for orders pursuant to s.318 and s.319 of the Fair Work Act 2009 (the Act).

[2] The orders sought are as follow (the Orders):

“Under section 318(1) of the FW Act, the Applicant seeks the following order:

1. The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 will not cover, and the Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020 – 2024 will cover, transferring employees who were previously employed or who are currently employed by John West Logistics Pty Ltd and have been or may in the future be employed by Glen Cameron Pty Ltd; and

Under section 319(1)(a) of the FW Act, the Applicant seeks the following order:

2. The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 does not and will not cover non-transferring employees who perform, or are likely to perform transferring work for Glen Cameron Pty Ltd.” 1

[3] The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 will hereafter be referred to as the JWL EA, 2 and the Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020 – 2024 as the Cameron EA.3

[4] The Form F40 application was also accompanied by:

•  Statement of Ms Taneal Roach, Chief People Officer at the Glen Cameron Group;

•  Exhibits to Statement of Ms Taneal Roach;

•  Statement of Mr Ross Haysom, Transport Workers’ Union of Australia (TWU) delegate for transferring staff from John West Logistics Pty Ltd; and

•  Email from Mr Chris Fennell, Branch Assistant Secretary, TWU Victoria/Tasmania.

[5] After the matter was allocated to me, I issued a Statement dated 20 September 2021 (the Statement) 4 in the terms outlined below:

“[1] An application has been made by Glen Cameron Pty Ltd T/A Glen Cameron Couriers (the Applicant) to the Fair Work Commission (the Commission) pursuant to s.318 and s.319 of the Fair Work Act 2009 (the FW Act) respectively.

[2] The Orders sought are as follow:

“Under section 318(1) of the FW Act, the Applicant seeks the following order:

1. The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 will not cover, and the Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020-2024 will cover, transferring employees who were previously employed or who are currently employed by John West Logistics Pty Ltd and have been or may in the future be employed by Glen Cameron Pty Ltd; and

Under section 319(1)(a) of the FW Act, the Applicant seeks the following order:

2. The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 does not and will not cover non-transferring employees who perform, or are likely to perform transferring work for Glen Cameron Pty Ltd.”

[3] The application is accompanied by submissions and a witness statement of Taneal Roach, the Chief People Officer for the Glen Cameron Group of companies. The witness statement of Taneal Roach sets out evidence in support of the Orders being made.

[4] The documents that have been lodged in support of the application can be provided by sending a written request to [email protected]

[5] Taking into account those submissions and evidence, I have formed the provisional view that it is appropriate to grant the application and make the Orders sought.

[6] However, in deciding whether to make the Orders sought, the Commission must also take into account the views of employees who would be affected by the Orders.

[7] If you are an employee who would be affected by the Orders and wish to provide any views regarding the application, please advise by email at [email protected] or by calling [phone].

[8] Any views are to be provided to the Commission by no later than 12.00 pm on Thursday, 23 September 2021.”

[6] On 20 September 2021, an email was also sent directing the Applicant to take the following steps:

“In order to ascertain any views of the employees who would be affected by the Orders, the Commissioner has determined that any views of the employees are to be obtained by the employer forwarding by email or handing to employees or posting on a notice board in the place of employment the attached Statement by no later than 12:00 pm, Tuesday, 21 September 2021.

Once this course of action is followed, the Commissioner asks that the employer provides in writing details of the steps taken to make the Statement available to employees.

The Commissioner has asked that details of the steps taken please be provided as soon as possible, but by no later than 4.00pm, Wednesday, 22 September 2021.”

[7] On 22 September 2021, a letter was provided outlining the steps that the Applicant took to make the Statement available to employees by 12:00 pm on 21 September 2021. In summary, the Applicant provided the Statement to employees by sending it via email and/or posting it on the notice board. The Applicant also sent a text message to employees notifying them of the email and/or the notice. Copies of both the email and text message were provided by the Applicant. No employees contacted my chambers with any views.

Background

[8] The background to this application is outlined in the statement of Ms Roach and in the Form F40 application. The relevant background is outlined below.

[9] The Cameron Group operates a national business offering warehousing, transport and trucking, courier and logistics services to customers across Australia. The Cameron Group includes Glen Cameron Nominees Pty Ltd trading as Glen Cameron Trucking (A.C.N. 005 350 863) (GC Trucking) and Glen Cameron Pty Ltd, trading as Cameron Couriers (A.C.N. 006 953 813) (Cameron Couriers), who are together named as “the Employer” under clause 2.1 of the Cameron EA. The Employer carries out the Cameron Group’s business operations in the State of Victoria.

[10] Stramit Corporation Pty Ltd (ABN 57 005 010 195) (Stramit) is a national manufacturer and supplier of roll formed steel building products. In about August 2021, Stramit awarded a tender to the Cameron Group to provide carrier services to Stramit in Victoria and Albury, NSW (Services).

[11] It is anticipated that, in either the week starting 13 September 2021 or the week starting 20 September 2021, Stramit and Cameron Couriers will finalise negotiations relating to the terms of a commercial agreement between them called the “Domestic Freight Services Agreement” pursuant to which Cameron Couriers will provide the Services to Stramit from 4 October 2021 until September 2026 with an option to extend the agreement until September 2027.

[12] Before awarding the tender to Cameron Couriers, Stramit engaged John West Logistics Pty Ltd (ACN 095 949 830) (JWL) to perform the Services.

[13] It is intended by the Cameron Group, Stramit and JWL that:

•  all rights, title and interest in the assets necessary for the performance of the Services (Assets) which currently belong to JWL, will be transferred from JWL to Glen Cameron Asset Management Pty Ltd ACN 168 764 985 (GCAM) (which is a company within the Cameron Group), who will own the Assets thereafter; and

•  Cameron Couriers will have the beneficial use of the Assets to perform the Services from 4 October 2021.

[14] JWL is covered as employer by the JWL EA, which also applies to employees of JWL in “any of the occupations within the scope of the Road Transport and Distribution Award 2010 and working from Stramit Victoria sites: Knoxfield, Bendigo or Albury or Taurean Doors Systems in Knoxfield” (the transferring work).   

[15] Cameron Couriers intends to employ all JWL employees engaged by JWL in providing the Services (the transferring employees) from 4 October 2021, subject to completion of commercial agreements between Stramit, JWL and Cameron (anticipated to occur in the weeks commencing 13 or 20 September 2021) and the Commission granting the proposed Orders.

[16] There are a total of 46 transferring employees presently covered by the JWL EA as well as four JWL employees in management positions whom Cameron Couriers intends to employ. Forty-one of the transferring employees are based at the Stramit Knoxfield depot and five of them are based in Albury.

[17] Cameron Couriers wishes for the Cameron EA to cover employees performing the Services including the transferring employees and any non-transferring employees  5

[18] Ms Taneal Roach also gave evidence as to the approach taken to communicating with employees about the likely changes that were to occur as a result of Cameron Couriers being awarded the tender. 6

[19] On Monday, 6 September 2021, a meeting was held between members of the executive and management team of the Cameron Group, the transferring employees of JWL and the four JWL managers (6 September Meeting).

[20] The 6 September Meeting took place at the Stramit Knoxfield worksite at the beginning of the day’s shift (from 5:00am to 6:15am) and was attended by:

•  Mr Damien Grace, Chief Operating Officer of the Cameron Group;

•  Ms Taneal Roach, Chief People Officer of the Cameron Group;

•  Mr Alan Gotts, Group Safety & Wellbeing Manager of the Cameron Group;

•  Mr Darren Hanisch, Transport Safety Advisor & Stramit Project Implementation Lead; and

•  Mr Scott Hughes, Driver Trainer of the Cameron Group.

[21] About forty of the transferring employees based at Knoxfield attended the 6 September Meeting. All of the JWL employees who attended the 6 September Meeting were given:

•  a welcome letter; 7

•  an offer of employment; 8 and

•  a copy of the Cameron EA

(together, Onboarding Pack)

[22] During the 6 September Meeting, Mr Grace and Ms Roach explained to the transferring employees the details of the Onboarding Pack, including:

•  the contents of the two letters;

•  a summary of the key differences between the JWL EA and the Cameron EA;

•  Pay levels and the details and how the details had been calculated;

•  the process for them to follow to accept Cameron Courier’s offer of employment;

•  the steps that would be involved to transition them to employment with Cameron Couriers; and

•  finally, a general Q&A session.

[23] At the 6 September Meeting, Mr Grace confirmed to the transferring employees that JWL intended to transfer its Victoria Operations to the Cameron Group and that Cameron Couriers would extend offers of employment to all persons employed by JWL at Knoxfield and Albury sites on conditions to be confirmed in written offers of employment (there are no transferring employees based at the Bendigo site referred to in clause 3(a)(i) of the JWL EA).

[24] The Offers of Employment provided by Cameron Couriers to the transferring employees contained, among other things, the following information:

•  The employee was offered employment with Cameron Couriers on the terms in the letter;

•  The letter featured appendices which outlined a summary of the wages and employment conditions under the Cameron EA to which the individual employee would be entitled, and a comparison with their JWL wages and conditions, based on their actual earnings between January to August 2021;

•  The amount each week by which the employee would be better off under the Cameron EA;

•  Their employment would transfer with effect from 4 October 2021, subject to completion of commercial arrangements between the businesses, the employee’s acceptance of the offer and on the condition that the Fair Work Commission makes the necessary orders so that the Cameron EA will apply to the transferring employees;

•  All accrued annual leave, sick leave, rostered days off, long service leaves will be recognised by and transfer to Cameron Couriers;

•  The employee’s grade under the Cameron EA and their rate of pay; and

•  The transferring employee would be entitled to a Stramit Allowance of $8.00 per day on the condition that they were ready, willing and available to work for the day in question and actually worked that day.

[25] The transferring employees based at Knoxfield who did not attend the 6 September Meeting were sent copies of the Onboarding Pack.

[26] Mr Grace met with the five transferring employees based at Albury on 8 September 2021 (the 8 September Meeting) and provided the same information and copies of the Onboarding Pack to them as had occurred at the 6 September Meeting at Knoxfield.

[27] The transferring employees had a reasonable opportunity after the meetings to seek additional information or ask question by calling Cameron’s HR team or Mr Darren Hanisch (Stramit Project Implementation Lead). As of 16 September 2021, the Applicant had received about 12 phone calls from transferring employees about the process.

[28] By 9 September 2021, all 41 transferring employees based at Knoxfield had communicated their acceptance of Cameron Courier’s offer of employment by signing and returning the offer of employment to Ms Roach. It is anticipated the five transferring employees based at Albury will soon have communicated their acceptance of Cameron Courier’s offers of employment.

FWC power to make orders

[29] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of s.311(1) of the Act. Section 317 provides the Commission with the power to make certain orders if satisfied that there is, or is likely to be, a transfer of business from an old employer to a new employer. As I am satisfied that there will be a transfer of business, the Commission is invested with the power to make the Orders sought.

Transferrable instrument

[30] Section 312 of the Act details instruments that may transfer:

“312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

[31] The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 was approved by the Fair Work Commission on 18 September 2019 and pursuant to s.312(1) of the Act is a transferrable instrument. The Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020 – 2024 was approved by the Fair Work Commission on 10 November 2020 and pursuant to s.312(1) of the Act is a transferrable instrument.

[32] Section 318 provides:

“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.”

[33] Section 319 provides:

“319 Orders relating to instruments covering new employer and non-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 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.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

Consideration

[34] There is considerable overlap in the factors to be considered and the evidence pertaining to the Orders sought. The evidence given by Ms Roach is not in contest and I accept the evidence she has provided in support of the application. In the circumstances, I have considered the factors relevant to both Orders sought together below.

Who may apply for an order?

[35] The application has been made by Glen Cameron Pty Ltd, the new employer. The requirements of s.318(2) and s.319(2) have therefore been met.

Matters the Fair Work Commission must take into account (s.318(3) and s.319(3))

The views of the new employer who would be affected by the order (s.318(3)(a)(i) and s.319 (3)(a)(i))

[36] The new employer is the Applicant, Glen Cameron Pty Ltd, and it supports the making of the Orders.

[37] The witness statement of Ms Roach provided with the application states that the Applicant wants the Cameron EA to apply to transferring employees and non-transferring employees. This factor weighs in favour of making the Orders sought.

The views of the employees who would be affected by the order (s.318(3)(a)(ii) and s.319(3)(a)(ii))

[38] The TWU has provided a statement of Mr Ross Haysom which includes the following:

“I am a transport worker at John West Logistics Pty Ltd (JWL), a road transport operator.

I am the union delegate for the Transport Workers Union at JWL’s worksite at Knoxfield, Victoria.

JWL employs approximately 43 transport workers at Knoxfield and five in Albury, New South Wales under the John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 - 2022 (JWL EA).

I am aware that the Cameron Group, another transport company, recently won a tender to provide transport services to Stramit Corporation Pty Ltd in Victoria and Albury, which were previously performed by JWL and its workforce.

I am aware that, in order to provide the services to Stramit, the Cameron Group intends to:

a. take on all of the transport workers currently employed by JWL and employ them through Glen Cameron Pty Ltd, trading as Cameron Couriers (A.C.N. 006 953 813) Cameron Couriers);

b. apply to the Fair Work Commission for orders so that the transport employees who transfer from JWL will be covered by Cameron’s enterprise agreement, the Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020-2024 (the Cameron EA).

The management team at Cameron has recently engaged with me, the TWU and the JWL workforce to explain these developments to us.

I am confident that Cameron is acting honestly and is being accommodating, in relation to the details and that I have seen and in the dealings that I have been involved with.

Cameron has explained the timing of the transfer and provided me and other the workers with relevant information and offers of employment.

I am personally content with what has been put forward.

In my role as TWU delegate I have spoken to many of the other JWL employees at Knoxfield who have been offered employment with Cameron. I specifically asked around the yard on 13 September 2021 for feedback from the JWL transport workers about the Cameron offer of employment. The feedback that I received was generally positive. A majority of my colleagues agree that Cameron is dealing fairly with them.” 9

[39] There is also an email from Mr Chris Fennell (Branch Assistant Secretary, TWU Victoria/Tasmania) advising that the TWU Victoria/Tasmania does not object to the application.

[40] Further, the Statement referred to earlier was provided to employees. However, no employees contacted my chambers with any views.

[41] Taking into account the evidence relevant to this factor, I am satisfied that employees are generally supportive of the Orders sought being made. There is no indication that any employees oppose the Orders being made. Consideration of this factor weighs in favour of making the Orders sought.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment (s.318(3)(b) and s.319(3)(b))

[42] From the analysis provided by Ms Roach, it does not appear that employees would be disadvantaged by the Orders sought. In relation to their terms and conditions of employment. The analysis is outlined below:

“Transferring employees will be better off under the Cameron EA than under the JWL EA.

Rates of pay under the Cameron EA are higher at all levels as follows:

In preparing offers of employment for the transferring staff, I carried out a reconciliation of the terms and conditions under the JWL EA and the Cameron EA. In doing so, I reviewed the actual remuneration earned by all of the 48 transferring employees at JWL during the period from January 2021 to August 2021. This included employees engaged at levels 3, 4, 6 and 8 under the JWL EA.

I compared the value of the employee’s total remuneration packages comprising:

a. ordinary wages;

b. overtime penalties;

c. night shift penalties;

d. tea allowance;

e. leave loading;

f. Stramit allowance;

g. crib break allowance;

h. crane allowance;

i. overnight allowance; and

j. superannuation contributions;

My analysis concluded that all of the transferring employees would have been better off during the relevant period if they had been paid under the Cameron EA. Across all of the transferring employees, the average amount by which the employees would have been better off under the Cameron EA was $129.10.

Only four employees would have been be better off by an amount under $100.” 10

[43] I agree with the submission of the Applicant that transferring employees will be financially better of under the Cameron EA. While there are some less beneficial terms, the analysis of Ms Roach demonstrates that over the approximate 8-month period considered, the majority of employees would have been better off by more than $100 per week, with the other four employees still better off but by a lesser amount. Having considered the evidence, I am satisfied the employees would not be disadvantaged by the Orders in relation to their terms and conditions of employment. Consideration of this factor weighs in favour of granting the Orders sought.

If the order relates to an enterprise agreement—the nominal expiry date of the agreement (s.318(3)(c) and s.319(3)(c))

[44] The evidence of Ms Roach is that:

“The John West Logistics Pty Ltd Enterprise Agreement (Stramit & Taurean Doors Systems Operations) Victoria 2019 – 2022 has a nominal expiry date of 31 January 2022.

The Glen Cameron Nominees Pty Ltd Victoria Enterprise Agreement 2020-2024 has a nominal expiry date of 30 June 2024.

The nominal expiry date of the Cameron EA is approximately 17 months later than the JWL EA.

The transferring employees staff will receive an additional annual wage increase under the Cameron EA which they would not otherwise receive under the JWL EA. See clause 16.5 of the Cameron EA.” 11

[45] The access to an additional wage increase is a benefit to the employees. Overall consideration of this factor weighs in favour of granting the Orders sought.

Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace (s.318(3)(d) and s.319(3)(d))

[46] The evidence of Ms Roach is that:

“It will not be as efficient for Cameron to administer payroll and HR functions if the JWL EA applies to transferring employees and the Cameron EA applies to similar employees in the rest of the business.

It is possible that disharmony would arise in a situation where the JWL EA applied to a part of the workforce and the Cameron EA applied to another, larger cohort doing substantially the same work, because the terms and conditions of the enterprise agreements are not the same.” 12

[47] I accept the evidence of Ms Roach on this point. Consideration of this factor weighs in favour of granting the Orders sought.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer (s.318(3)(e) and s.319(3)(e))

[48] The evidence of Ms Roach is that:

“There would not be any significant economic disadvantage to Cameron if the JWL EA applied to it and transferring employees. The cost of employing the transferring employees under the JWL EA, in terms of the value of wages, entitlements and other employment benefits under the JWL EA, is lower than the employment costs under the Cameron EA.” 13

[49] In the circumstances, this is a neutral consideration.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer (s.318(3)(f) and s.319(3)(f))

[50] The evidence of Ms Roach is that:

“The is significant business synergy between the JWL EA and the Cameron EA as follows:

The relevant employers in both agreements operate businesses in the road transport industry.

Both agreements apply to employees of the relevant employers employed in occupations covered by the Road Transport and Distribution Award 2010.

Both agreements bind the Transport Workers Union of Australia (TWU).” 14

[51] Consideration of this factor weighs in favour of granting the Orders sought.

The public interest (s.318(3)(g) and s.319(3)(g))

[52] The Form F40 contains the following submissions relevant to the public interest consideration:

“The public interest in this context is influenced by the objects of Part 2-8 of the FW Act, in s.309 and those adopted by the Act more broadly.

There is public interest in ensuring that agreed and statutorily approved arrangements are not put aside lightly and where they are to no longer apply, the interests of the employees concerned are safeguarded.

There is public interest in ensuring that agreed and statutorily approved arrangements are not put aside lightly and where they are to no longer apply, the interests of the employees concerned are safeguarded.

It is also the case that the public interest in this matter is served by facilitating arrangements that permit and encourage the maintenance of employment for the employees through the transfer of business process.

Taking into account all of the circumstances, there are no public interest considerations that arise in making the order sought in relation to Cameron and the transferring employees.”

[53] I agree with the submissions made on the public interest ground. This is a factor that weighs in favour of granting the Orders sought.

Conclusion

[54] Having considered the matters above, it is apparent that while there is one factor which is a neutral consideration, all other factors weigh towards granting the application sought. Taking into account each of the matters set out in s.318(3) and s.319(3) of the Act, I am satisfied that the Orders as sought should be granted. Orders to that effect will be issued concurrently with this decision.

[55] The Applicant has advised that the intention is that transferring employees will become employed by the new employer from 4 October 2021. There is no indication that any non-transferring employees will become employed at an earlier time.

[56] Section 318(4) of the Act provides as follows:

“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.”

[57] Section 319(4) of the Act provides as follows:

“Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

[58] Therefore, in accordance with s.318(4) and s.319(4) of the Act, the Orders will come into operation from 4 October 2021.

COMMISSIONER

Determined on the papers

Printed by authority of the Commonwealth Government Printer

<AE505360 PR734173>

 1   Form F40 - Application for orders in relation to transfer of business at 2.2

 2   AE505360.

 3   AE509488.

 4   [2021] FWC 5957.

 5   Statement of Ms Taneal Roach dated 16 September at [2] – [14].

 6   Ibid at [22] – [36].

 7   Exhibit TN-1.

 8   Exhibit TN-2.

 9   Statement of Mr Ross Haysom dated 14 September 2021 at [1] – [10].

 10   Statement of Ms Taneal Roach dated 16 September at [15] – [20].

 11   Ibid at [59] – [62].

 12   Ibid at [63] – [64].

 13 Ibid at [65].

 14   Ibid at [66] – [69].