Innovative Plastic Solutions Pty Ltd T/A IPS

[2017] FWC 5741

[2017] FWC 5741

FAIR WORK COMMISSION

DECISION

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

Innovative Plastic Solutions Pty Ltd T/A IPS
(AG2017/5208)

COMMISSIONER RYAN MELBOURNE, 3 NOVEMBER 2017

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

[1] Innovative Plastic Solutions Pty Ltd T/as IPS (IPS) has made an application to the Fair Work Commission for an order under Section 319 of the Fair Work Act2009 (the Act) for the Pixalux Enterprise Agreement 2015-2019 (the Agreement) to cover it, as the new employer, and non-transferring employees, who will perform the transferring work.

[2] IPS has taken over the operations of the previous employer, Cubic Pacific Pty Ltd (Cubic). The transferring employees are performing substantially the same work for IPS as they were for Cubic. The work of the employees will not significantly change. There has been a transfer of business in accordance with Section 311 of the Act. The transferring employees are covered by the transferable instrument, the Pixalux Enterprise Agreement 2015-2019. The nominal expiry date of the Agreement is 15 May 2019.

[3] IPS will employ new employees who will perform work covered by the transferable instrument (non-transferring employees). If an order is not made under Section 319 of the Act as sought by IPS these employees will be covered by the Manufacturing and Associated Industries and Occupations Award 2010. The transferring work is the work which will be performed by those non-transferring employees who will be covered by the Agreement if the Order is made. I am satisfied that the terms of the Agreement significantly advantage employees when compared to the Award.

[4] I have considered the matters set out in Section 319(3) of the Act. I am satisfied that:

(a) The employer supports the application because it will provide consistency of terms and conditions for its employees.

(b) No employee will be disadvantaged by the order.

(c) There is time until a new enterprise agreement will be negotiated to cover all employees.

(d) There will be positive impacts on transferring employees and no negative impact on productivity.

(e) There is no significant economic disadvantage to the employer as all current employees are covered by the instrument.

(f) Avoiding multiple workplace instruments will improve business synergy.

(g) It is in the public interest for employees to have access to superior and consistent terms and conditions and a collectively bargained agreement.

[5] The factors in Section 319(3) support the making of the Order sought pursuant to Section 319(1)(b). In weighing the factors considered above I would have regard to the Object of Part 2-8 – Transfer of Business of the Act as set out in Section 309. That requires me to balance the protection of employees and the efficient running of business.

[6] I am satisfied that the Order should be made in accordance with Section 319(1)(b) that the Pixalux Enterprise Agreement 2015-2019 will cover the Applicant, Innovative Plastic Solutions Pty Ltd T/as IPS, and any non-transferring employee of the Applicant (as defined in Section 314(2) of the Act) who performs, or is likely to perform the transferring work, being work for the Applicant within the scope of the Pixalux Enterprise Agreement 2015-2019 .

[7] Pursuant to Section 319(4) the Order shall have effect from the day on which the Order is made and will come into operation in relation to each non-transferring employee from the date they start to perform the transferring work for IPS.

COMMISSIONER

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