Kingpin Bowling Lounge

[2012] FWA 5613

[2012] FWA 5613

FAIR WORK AUSTRALIA

DECISION

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

Kingpin Bowling Lounge
(AG2012/9166, C2012/4325)

DEPUTY PRESIDENT SAMS SYDNEY, 2 JULY 2012

Applications for transferring of agreement and award - significant benefit to employees - business imperative - orders granted

[1] Kingpin Bowling Lounge (the ‘applicant’) has filed two applications, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’), seeking orders from Fair Work Australia (‘FWA’) relating to the transfer of an enterprise agreement and an award where there is a transfer of one national system employer to another. The relevant background to the application is that the applicant has obtained the business of AMF / Macarthur Playtime, whose employees are presently covered by the AMF Collective Agreement 2009 (the ‘AMF Agreement’) and the Amusement, Events and Recreation Award, 2010. The Agreement expires on 17 August, 2014.

[2] The applicant wishes to transfer employees employed under the AMF Agreement to coverage under the Kingpin Bowling Enterprise Agreement 2009 (the ‘Kingpin Agreement’) - an enterprise agreement approved by Lewin C on 7 May 2010 (2010 FWAA 3625). The Kingpin Agreement contains more favourable conditions of employment in respect to higher rates of pay. The applicant is working towards a better aligned business operation and common employment arrangements for team members of both the former AMF/Playtime and Kingpin Staff. The application of three separate industrial instruments is seen as an impediment to achieving these business objectives. All AMF / Playtime staff have been consulted in relation to the transfer of their industrial agreement and 20 of the 39 staff have agreed to the transfer in a postal ballot concluded on 17 May 2012.

[3] In determining these applications, FWA is required to take into account the following matters under s 318 (3) of the Act:

(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.

[4] At a hearing of the applications on 2 July 2012, Ms J Williamson, HR Manager for the applicant appeared via telephone link. Ms Williamson outlined the history to the applications and noted that the effect of the orders sought will provide for higher rates of pay. Employees will therefore be significantly better off. Ms Williamson submitted that the fact that some casual employees did not vote to approve the transfer was most likely due to a lack of interest, rather than any real opposition to the transfer. Both agreements were annexed to the applications and from reviewing their respective terms, I am satisfied that AMF / Playtime employees will be better off by being transferred to the Kingpin Agreement.

[5] Having considered the relevant filed material, Ms Williamson’s oral submissions and all of the criteria under s 318 (3) of the Act, particularly the public interest, I have no hesitation in granting the orders sought by the applicant with effect on and from 2 July 2012. Orders to that effect are issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Ms J Williamson - for the applicant

Hearing details:

2 July
2012
SYDNEY

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