Iron Mountain Australia Pty Ltd

[2013] FWC 3617

[2013] FWC 3617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 320 - Application to vary a transferable instrument - agreement

Iron Mountain Australia Pty Ltd
(AG2013/1156; AG2013/1157; AG2013/1158; AG2013/1159; AG2013/1160; AG2013/1161)

DEPUTY PRESIDENT SAMS SYDNEY, 7 JUNE 2013

Applications to vary transferable instrument - agreement - employer's name.

[1] This decision deals with six applications made by Iron Mountain Australia Pty Ltd (the ‘applicant’) pursuant to s 320 of the Fair Work Act 2009 (the ‘Act’) to vary the following enterprise agreements (collectively, the ‘Agreements’):

• The Iron Mountain Australia Pty Ltd Western Australia Enterprise Agreement 2012-2015 [AE893867];


• The Iron Mountain Australia Pty Ltd South Australia Enterprise Agreement 2012 [AE894084];


• The Iron Mountain National Imaging Enterprise Agreement 2012-2014 [AE895728];


• The Iron Mountain Records Management (Victoria) Enterprise Agreement 2011-2014 [AE895826];


• The Iron Mountain NSW Records Management Enterprise Agreement 2013 - 2016 [AE899386]; and


• The Iron Mountain Australia Pty Ltd Secure Destruction Enterprise Agreement 2013-2016 [AE899993]

[2] The Commission was advised that the applicant is in the process of restructuring the corporate entities through which it conducts its business and this will become effective on 1 July 2013. I am satisfied that notionally this constitutes a transfer of business within the meaning of s 311(1) of the Act and that the relevant employees would be transferring employees within the meaning of s 311(2) of the Act. The Agreements are therefore transferable instruments within the meaning of s 312(1)(a). Accordingly, I am satisfied that the relevant employees and the new employers will be covered by the Agreements from 1 July 2013 (s 313). I note that the Transport Workers’ Union - Victoria/Tasmanian Branch (the ‘TWU - Vic/Tas Branch’) is covered by the Iron Mountain Records Management (Victoria) Enterprise Agreement 2011-2014 and the Transport Workers’ Union - Western Australian Branch (the ‘TWU - WA Branch’) by the Iron Mountain Australia Pty Ltd Western Australia Enterprise Agreement 2012-2015.

[3] In the Form F41 Applications to Vary a Transferable Instrument, Ms R Laverick, General Manager, Human Resources states that the ground of this variation is to ‘provide clarity of the employer name within the Agreement (matches the employer name on payslips, super contributions etc)’. I take this to be a submission that the changes are directed to removing ambiguity or uncertainty (s 320(2)(b)) as to the employers’ new name. The applications are all in similar terms, in that the variations sought relate to the future identity of the employer. Specifically, the applicant seeks to change the identity of the employer ‘Iron Mountain Australia PTY Ltd (ABN: 67 005 944 203)’ to ‘Iron Mountain Australia Services Pty Ltd (ABN: 58 161 858 788)’ in each of the Agreements except for the Iron Mountain Australia Pty Ltd Secure Destruction Enterprise Agreement 2013 - 2016, in which the applicant seeks that the identity of the company be changed from ‘Iron Mountain Australia PTY Ltd (ABN: 67 005 944 203’)’ to ‘Iron Mountain Australia Secure Shredding Pty Ltd (ABN 64 161 858 751)’. The applicant is also seeking to vary the names of the Agreements to reflect the change in the identity of the employer in each of the respective agreements. I also note that the application seeks that any orders made by the Commission in these applications be made effective from 1 July 2013.

[4] At a hearing of the application conducted by teleconference on 30 May 2013, Ms R Laverick, appeared for the applicant and Mr J Cutrali appeared for the TWU - WA Branch. Mr M Wirrick, of the TW - Vic/Tas Branch did not attend the hearing, but sought to rely on correspondence he forwarded to Chambers on 29 May 2013. Ms Laverick submitted that all of the legislative requirements for approval of the variations to the Agreements have been satisfied and that the proposed variations to the Agreements should be approved by the Commission. Mr Cutrali indicated that the TWU - WA Branch supported the applications. The correspondence from Mr Wirrick indicated that the TWU - Vic/Tas Branch supported the applications as put forward by the applicant, but had some concerns as to the identification of the relevant industry in the application. At my request, Ms Laverick later provided draft copies of Form F23 Applications for Approval of Variation of Enterprise Agreements, being the originating form seeking orders to be made pursuant to s 210 of the Act. These had been drafted, but never filed, when the applicant took the view that the current applications were a more appropriate vehicle to vary the Agreements. These forms were signed by employee representatives and I take it that they demonstrate that, prima facie, the employees do not oppose the application to vary the Agreements (s 320(a)(ii)).

[5] Having heard the parties’ submissions and upon reviewing the terms of the applications and the Agreements, I have decided, on balance, to make the orders sought by the applicant. In making my decision, I have considered the following factors:

• the employees and relevant Unions have not opposed the applications (s 320(4)(a));


• the variations sought do not impact on the terms and conditions under which the relevant employees work (s 320(4)(b));

 
• the nominal expiry dates of the Agreements are between 31 July 2014 and 30 June 2016 (s 320(4)(c));


• the new employers are unlikely to experience any substantial negative impacts on productivity (s 320(4)(d) or any economic disadvantage (s 320(4)(e)) if they were covered by the Agreements without the variation;


• there is no evidence that the new employers are covered by any other workplace instrument (s 320(4)(f));


• it makes administrative sense to have the correct name of the employer on all the employees’ pay and conditions records; and


• it is not against the public interest for the Agreements to be varied in the manner sought (s 320(4)(g)).

[6] I will issue orders to that effect separately to this decision.

DEPUTY PRESIDENT

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