I-Power Management Pte Ltd

[2017] FWC 2252

[2017] FWC 2252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

I-Power Management Pte Ltd
(AG2017/780)

Hospitality industry
DEPUTY PRESIDENT BINET	PERTH, 18 MAY 2017

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

[1] I-Power Management Pte Ltd (I-Power) has made an application (Application) to the Fair Work Commission (FWC) pursuant to section 319(1)(b) of the Fair Work Act 2009 (FW Act) seeking orders that the Crowne Plaza Perth Enterprise Agreement 2011-2012 (Agreement) cover employees of I-Power not currently covered by the Agreement who perform, or are likely to perform, hospitality work performed by employees covered by the Agreement.

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 December 2012. The parties to the Agreement are Avant Hotels Pty Ltd (Avant Hotels) and the employees of Avant Hotels engaged in the classifications set out in Appendix A of the Agreement. The Agreement also covers United Voice.

Background

[3] On 5 December 2016, I-Power entered into a Hotel Sale Agreement with Avant Hotels to purchase Crowne Plaza Perth resulting in a transfer of business for the purposes of section 311 of the FW Act.

[4] Existing employees of Avant Hotels were offered, and accepted, employment with I-Power in comparable positions and on terms and conditions of employment which are substantially similar to, and no less favourable than, their employment with Avant Hotels (Existing Employees). The work which the Transferring Employees will perform for I-Power is the same, or substantially the same, as the work that they performed for Avant Hotels (Transferring Work).

[5] By virtue of section 313(1)(a) of the FW Act, the Transferring Employees will be covered by the Agreement.

[6] Unless the Application is granted, existing and new employees of I-Power (Non-Transferring Employees) performing the same, or substantially the same, work as the Transferring Employees will be covered by the Hospitality Industry (General) Award 2010.

[7] To ensure consistency in terms and conditions of employment for Transferring Employees and Non-Transferring Employees who will perform the same, or substantially the same work, I-Power seeks an order from the FWC that the Agreement covers Non-Transferring Employees (Proposed Order).

[8] The Application was accompanied by a copy of the Agreement, draft orders sought (Draft Orders), and the Statutory Declaration of Terrance Austen (Austen Statutory Declaration), General Manager of Crowne Plaza Perth.

Relevant legislation

[9] Section 319(3) of the FW Act sets out matters that the FWC must take into account in deciding whether to make an order pursuant to section 319(1)(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.”

Consideration

[10] In accordance with directions issued to parties on 24 March 2017 (Directions), on 29 March 2017, 6 April 2017 and 7 April 2017, I-Power filed the following with the FWC:

(a) an outline of submissions addressing section 319(3) of the FW Act as to why the Proposed Order should be made;

(b) a signed statutory declaration of Solicitor Mark John Norman of Dentons Australia Pty Ltd (Mr Norman), the firm engaged by I-Power, confirming that the Directions had been complied with and that the Application, the Agreement, the Draft Orders, the Austen Statutory Declaration and the Directions had been served on United Voice.

[11] The Directions contained an invitation for any Non-Transferring Employee who wished to be heard with respect to the Application to contact the Commission by close of business on Thursday 13 April 2017. However, the Statutory Declaration of Mr Norman confirmed that, at that time, there were no Non-Transferring Employees employed by the Applicant.

Conclusion

[12] I am satisfied that:

(a) a ‘transfer of business’ has occurred as defined by section 311 of the FW Act;

(b) the Agreement is a ‘transferable instrument’ as defined by section 312 of the FW Act; and

(c) I-Power is a ‘new employer’ for the purposes of section 319(2) of the FW Act and is therefore eligible to apply for the Proposed Order.

[13] The view of the new employer is that the order should be made by the FWC.

[14] The views of the Non-Transferring employees affected by this order are not known as no such employees have been engaged yet, and no objection was received from United Voice.

[15] There is no evidence that the employees affected would be disadvantaged by the order in relation to their terms and conditions of employment.

[16] The nominal expiry date of the Agreement, namely 31 December 2012, weighs in favour of the Proposed Order being granted because it allows both the Transferring Employees and the Non-Transferring Employees to jointly negotiate a new agreement in due course.

[17] By allowing for consistency in terms and conditions of employment between Transferring Employees and the Non-Transferring Employees performing the same or substantially the same work, the Proposed Order is likely to have a positive impact on workplace productivity.

[18] I-Power submits that it would incur economic disadvantage if the Proposed Order is not made, and I accept these submissions.

[19] There is minimum business synergy between the Agreement and the relevant Award because of the differing terms and conditions.

[20] There is nothing to suggest that the order sought is contrary to the public interest.

[21] In light of the above, it is appropriate to make the order sought by I-Power. An order to this effect (PR592050) will be issued with this decision.

DEPUTY PRESIDENT

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<Price code A, AE885352  PR592051 >