Jupiters Limited t/as Jupiters Hotel & Casino

[2015] FWC 4947

[2015] FWC 4947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees

Jupiters Limited t/as Jupiters Hotel & Casino
(AG2015/3290)

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 JULY 2015

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

[1] This is an application, filed by Jupiters Limited t/as Jupiters Hotel & Casino (the ‘applicant’), pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’) that the Jupiters Hotel & Casino Enterprise Agreement 2011 [AE891586] (the ‘old Agreement’) will not cover the applicant and 89 employees who perform housekeeping, cleaning and stewarding functions and that they instead be covered by the Jupiters Hotel & Casino Enterprise Agreement 2014 [AE410766] (the ‘new Agreement’), which reached its nominal expiry date on 31 May 2014. Relevantly, United Voice (the ‘Union’) is covered by both the old Agreement and the new Agreement.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

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 paragraph 313(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.

Who may apply for an order
(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (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.

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.’

[3] In the Form F40 application for orders in relation to transfer of business, Mr S Ratu, Solicitor f6r the applicant set out the background circumstances to the application. He explained that the applicant had outsourced its housekeeping, cleaning and stewarding functions to a third party, resulting in a transfer of business and those employees continuing to be covered by the old Agreement in their employment with that third party. The new Agreement covering the applicant was approved on 17 October 2014. More recently, the applicant had insourced the cleaning and stewarding functions meaning that it reemployed a number of affected employees along with 74 other individuals who had not previously been employed by the applicant.

[4] Mr Ratu further submitted that the transferring employees would not be disadvantaged and would be better off overall if the orders sought were granted as the rates of pay under the new Agreement were higher than those under the old Agreement. The new Agreement also provides for improved casual conversion arrangements. Mr Ratu also set out an extensive consultation process with the affected employees, culminating in each affected employee indicating formally whether they supported the making of the orders sought. The Union had indicated in correspondence dated 6 July 2015 that it supported the making of the orders sought.

[5] Finally, Mr Ratu put that, should the orders not be granted, there would be adverse effects on the applicant’s productivity as the workforce would be ‘fractured’ and the administrative functions of the human resources and payroll departments would be unnecessarily complicated. It would not be contrary to the public interest for the orders to be granted.

[6] Having considered the materials filed by the applicant, I intend to make the orders sought by the applicant. In doing so, I have taken all of the matters in ss 318(3) into account; in particular, the views of the applicant, the Union and the employees. I am satisfied that there is no disadvantage to the employees and that there would be a negative impact on the productivity of the applicant’s workplace, should the orders not be granted. For the sake of completeness, I am satisfied that granting the orders would not be contrary to the public interest. Orders giving effect to this decision are published contemporaneously with this decision.

DEPUTY PRESIDENT

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