Greater Western Water Corporation - [2022] FWC 581

[2022] FWC 581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Greater Western Water Corporation

(AG2022/529)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 21 MARCH 2022

Application for orders relating to a transferable instrument.

Greater Western Water Corporation has applied for orders pursuant to section 318 of the Fair Work Act 2009 (Cth) (Act) in relation to the Western Water Enterprise Agreement 2017[1] (WW Agreement) and the City West Water Enterprise Agreement 2019[2] (CWW Agreement).

On 1 July 2021, by virtue of ministerial determinations made under sections 87 and 88 of the Water Act 1989 (Vic):

all functions, duties and powers of the Western Region Water Corporation t/a Western Water (Western Water) were transferred to the City West Water Corporation; and
all (197) employees of Western Water were transferred to employment with City West Water Corporation (Transferring Employees).

On 1 January 2022, City West Water Corporation adopted a business name of Greater Western Water.

The orders sought would have the effect that the WW Agreement would not cover, and the CWW Agreement would cover, the Transferring Employees in their employment with Greater Western Water.

The application was either supported, or not opposed, by the organisations covered by both the WW Agreement and the CWW Agreement.

Consideration

Section 318(1) of the Act provides that the Commission may, on application by a person or organisation identified in section 318(2), 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.

The power to make orders under section 318 is premised on the Commission being satisfied that there has been, or that there is likely to be, a transfer of business pursuant to section 311 of the Act. On the evidence before the Commission, I am satisfied that there has been a transfer of business from Western Water to the entity now known as Greater Western Water (named City West Water Corporation at the time of transfer) because:

The employment of the Transferring Employees terminated and within three months of termination the Transferring Employees became employees of the entity now known as Greater Western Water (section 311(1)(a) and (b));
The work performed by the Transferring Employees for the entity now known as Greater Western Water is the same or substantially the same as the work they performed for Western Water (section 311(1)(c)); and
There is a “connection” between the entity now known as Greater Western Water and Western Water as described in section 311(3) (section 311(1)(d)).

Section 318(3) provides that, in deciding whether to make an order under s.318(1), the Commission must take into account certain matters - considered in turn as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Greater Western Water Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 581
Decision Date

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Greater Western Water Corporation for orders relating to the Western Water Enterprise Agreement 2017 and the City West Water Enterprise Agreement 2019. The application sought to ensure that the Western Water Enterprise Agreement would no longer cover the employees of Western Water who transferred to Greater Western Water, and that the City West Water Enterprise Agreement would instead cover those employees. The Commission was required to consider a number of factors in determining whether to grant the application. These included the views of the new employer and affected employees, whether any employee would be disadvantaged by the orders, the nominal expiry date of the agreement, the potential negative impact on productivity, whether the new employer would incur significant economic disadvantage, the degree of business synergy and the public interest. The Commission found that the views of the new employer and affected employees, as well as the potential negative impact on productivity and the public interest, weighed in favour of making the orders. The other factors were either neutral or also weighed in favour of making the orders. Accordingly, the Commission decided to make the orders, which will come into operation on 23 March 2022. The orders will ensure that the City West Water Enterprise Agreement will cover the employees of Western Water who transferred to Greater Western Water, and that the Western Water Enterprise Agreement will no longer cover those employees.

Orders