Guzman Y Gomez Restaurant Group Pty Limited

[2022] FWC 1380

[2022] FWC 1380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Guzman Y Gomez Restaurant Group Pty Limited

(AG2022/1476)

Fast food industry
DEPUTY PRESIDENT CROSS	SYDNEY, 1 JUNE 2022

Application in relation to transfer of business - transferable instrument - application that the transferable instrument not cover transferring employees – statutory preconditions established - orders granted

1. This is an application, pursuant to s.318 of the Fair Work Act 2009 (Cth) (the Act) filed by Guzman Y Gomez Restaurant Group Pty Ltd (the Applicant), which seeks orders from the Fair Work Commission (the Commission) that a transferable instrument, being the Veronesi Holdings Enterprise Agreement 2013 (the Agreement), will not apply to employees who will be employed by the Applicant following a transfer of business.

1. Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

“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 paragraph313(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.

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.”

1. In the Applicant’s Form F40 – Application Orders in Relation to a Transfer of Business, the Applicant explained the background to the Application.

1. Briefly, a forthcoming transfer of business will result in the Applicant employing approximately 170 employees (Transferring Employees) who are currently covered by the Agreement, and who will continue to be subject to the Agreement following the transfer of business pursuant to s.311(3) of the Act, in the absence of the order sought.

1. Should the order be issued, Transferring Employees will be subject to the Fast Food Industry Award. Current employees of the Applicant are also subject to the Fast Food Industry Award, and the Applicant seeks to ensure all employees are covered by the same instrument.

1. The Agreement nominally expired on 13 March 2017. The Applicant notes that it is unlikely that the orders will cause Transferring Employees to be disadvantaged in relation to the terms and conditions of their employment. The views of Transferring Employees were sought, however none were provided.

1. The Applicant notes that it would incur some negative impact on productivity, and economic disadvantage if the orders were not granted, due to the administrative burden of applying two industrial instruments to its employees. The Applicant notes that the orders sought will be conducive to the Applicant’s business synergy.

1. Having reviewed the filed documentation, I consider that there are no public interest concerns in relation to granting the order sought. Accordingly, the Order will be issued concurrently with the publication of this decision.[1]

1. Pursuant to s.318(4) of the Act, the Order shall take effect from today.

DEPUTY PRESIDENT

[1] PR742218.

Printed by authority of the Commonwealth Government Printer

<AE400140  PR742221>