Johnson Controls Australia Pty Ltd T/A Global Workplace Solutions
[2009] FWA 1465
•2 DECEMBER 2009
[2009] FWA 1465 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
(AG2009/17342)
Metal industry | |
DEPUTY PRESIDENT LEARY | HOBART, 2 DECEMBER 2009 |
Orders relating to instruments covering new employer and transferring employees.
[1] This is an application by Johnson Controls Australia Pty Ltd t/a Global Workplace Solutions (the applicant) pursuant to s.318 of the Fair Work Act 2009 (the Act) for an order relating to instruments covering new employer and transferring employees in agreements.
[2] The applicant seeks an order pursuant to s.318(1)(a) of the Act that:
“The Cadbury Schweppes Pty Ltd Confectionary Division, Claremont Operations Enterprise Bargaining Agreement 2008 will not cover Johnson Controls Australia Pty Ltd or any transferring employees (as defined in s.311) who transfer from Cadbury Schweppes Pty Ltd (now Cadbury Pty Ltd) to Johnson Controls Australia Pty. Ltd.”
[3] The applicant will be the new employer of four employees following the action of Cadbury Pty Ltd to outsource its boiler house operations at the Claremont site in Tasmania. It was submitted that the outsourcing of facilities management is consistent with Cadbury’s world wide approach and that the applicant is the preferred supplier for the operations at the Claremont site.
[4] The Construction, Forestry, Mining and Energy Union (CFMEU) is eligible to represent the interests of the employees working in the boiler house.
[5] There are currently five employees working in the boiler house, one employee is retiring and the other four employees wish to be employed by the applicant.
[6] The applicant and the CFMEU have entered into a Greenfields Agreement pursuant to s.172(4) of the Act to cover the facilities management work at the Claremont site.
[7] It was submitted that should the order not be granted the terms of the Cadbury Schweppes Pty Ltd Confectionary Division, Claremont Operations Enterprise Bargaining Agreement 2008 (the Cadbury Agreement) will apply to the employees. The applicant said that the Cadbury Agreement had little or no synergy with the agreement negotiated between the applicant and the CFMEU. The Cadbury Agreement is the result of many years of local negotiation resulting in conditions and rates many of which are well above market and standard conditions. Those conditions would create difficulties for the applicant to incorporate into its payroll and administrative systems and are very different to conditions enjoyed by its own employees at sites throughout Australia.
[8] The CFMEU and the four employees agree that the Cadbury Agreement is inappropriate to apply to the applicant and agree that in the aggregate they would not be disadvantaged in relation to terms and conditions when compared to the relevant award or general industry standards or market rates.
[9] In the absence of an order as sought the applicant would require it to consider offering the employment to other persons other than the four current employees.
[10] In a submission from the CFMEU it was said that there had been several meetings between the applicant, the CFMEU, and the CFMEU delegate and employee representative, Gary Cuthbert. There were regular report back meetings with the employees.
[11] The CFMEU submitted that the affected employees all support the agreement reached between it and the applicant and have copies of the agreement and the applicant’s company policies. Each of the employees has signed a statement of understanding regarding the differences between the Cadbury Agreement and the new agreement between the CFMEU and the applicant and accept that some of the conditions are not as favourable as the conditions they currently enjoy but are well in excess of the relevant award and general standards and market rates.
[12] The CFMEU submitted that there is unanimous support for the new agreement between it and the applicant.
[13] S.318(3) provides the matters to take into account in deciding whether to grant the order sought it provides:
“In deciding whether to make the order, FWA 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.”
[14] The views of both the applicant (the employer) and the employees and their representative union the CFMEU are reflected in a new agreement between the parties and the submissions indicate that the employees strongly support this application. The employees have signed a statement prepared and co-ordinated by the CFMEU confirming their agreement to this application and the new agreement. It is clear that the applicant and the employees are of the view that the Cadbury Agreement should not apply.
[15] I am satisfied that the views of the employer and the employees have been considered and they all support this application.
[16] The employees affected by the order will not be disadvantaged by its approval in respect to the relevant award, general conditions or market rates. The employees have agreed to the new terms and conditions and concede arrangements less favourable may exist but are satisfied that a number of the conditions in the Cadbury Agreement are not relevant to the operation of the boiler facility.
[17] This matter has been the subject of a conference before the Commission and I am satisfied that the employees and the CFMEU support this application and the application for the agreement between the applicant and the CFMEU. When compared to the award rates and conditions and standards and rates generally the agreement is generous and the employees have indicated their satisfaction with its content.
[18] On balance I am of the view that the requirements ofs.318(3)(b) have been met.
[19] The nominal expiry date of the Cadbury Agreement is 28 February, 2011.
[20] There is no evidence that the Cadbury Agreement would have a negative impact on productivity in the boiler house. It is the agreement currently applied.
[21] It was submitted that the applicant would suffer economic disadvantage in having to adopt a different set of terms and conditions into its payroll and administration systems. The conditions in the Cadbury Agreement are very different to those applying to the applicant’s employees at other sites in Australia.
[22] There is little or no synergy between the Cadbury Agreement and the applicant’s agreement.
[23] To grant the order would not be against the public interest as the application is by agreement between the affected parties, it will guarantee ongoing employment to the four employees and the new agreement between the parties, when considered against the award and standards generally, is more applicable and representative of the applicant’s business elsewhere.
[24] Having taken into account those matters set out in s.318 of the Act I have decided to make an order that the Cadbury Agreement will not apply to the new employer or any relevant employees engaged by the new employer.
Orders
An Order [PR991405] giving effect to this decision is published separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR991401 >
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