Lime 1 Pty Ltd

[2012] FWA 9115

[2012] FWA 9115

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.319—Transferable instrument

Lime 1 Pty Ltd
(AG2012/8859)

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 26 OCTOBER 2012

Transfer of employees to existing employee collective agreement.

[1] An application has been made by Lime 1 Pty Ltd (the Company) for an order pursuant to s.319 of the Fair Work Act 2009 (the Act) in relation to the instrument that covers a new employer and non-transferring employees following a transfer of business.

[2] In April 2012 the Company purchased an IGA Supermarket located in Varsity Lakes in Queensland. Following the transfer of business, existing staff at the IGA Supermarket were offered and accepted employment with the Company.

[3] Employees engaged at the IGA Supermarket prior to the transfer of business were covered by the IGA Varsity Lakes (The Retailers Association) Employee Collective Agreement 2009 1 (the Agreement). The Agreement was made pursuant to s.327 of the Workplace Relations Act 1996 (the WR Act) and is a collective-agreement based transitional instrument as per Item 2(5)(c)(iv) of Schedule 3 of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (the Transitional Act). It has a nominal expiry date of 7 July 2014.

[4] The Company has engaged three new casual employees since its acquisition of the IGA Supermarket. The Company seeks an order made pursuant to s.319 of the Act that new employees engaged subsequent to the purchase of the supermarket will be covered by the Agreement.

[5] Division 2 of Part 2-8 of the Act provides for the transfer of rights and obligations under enterprise agreements, certain modern awards and other instruments where there is a transfer of business from an old employer to a new employer (see s.310).

[6] Section 311 of the Act provides the definition of transfer of business, old employer, new employer and transferring work. It also sets out the circumstances in which a transfer of business occurs.

[7] Section 312 of the Act defines transferable instrument. Item 8 of Schedule 11 of the Transitional Act modifies Part 2-8 of the Act to make it clear that the definition of transferable instrument in s.312(1) is extended to cover transitional instruments, other than workplace agreements and workplace determinations that have not yet come into operation.

[8] Section 319(1) of the Act provides that Fair Work Australia (FWA) may make certain orders in relation to a new employer and non-transferring employees. Section 319(3) sets out the matters that FWA must take into account when deciding whether to make an order under s.319(3).

[9] The Company advised that following discussions with affected employees about the differences in entitlements between the Agreement and the modern award, the employees indicated that they wish to be covered by the Agreement. The Company submitted that if the order was made all employees working in the supermarket would receive the same entitlements and conditions, and that as a result, the performance of the Company’s administrative functions would be simplified.

[10] Further, the Company submitted that employees would not be disadvantaged by the order if it were made. The Company indicated that some casual wage rates currently paid at the supermarket are below award rates. However, the Company indicated that higher wage rates on public holidays and Saturdays, and the payment of overtime rates to casual staff, offset any disadvantage because of lower pay rates for some casuals.

[11] The application was listed for hearing in chambers on 22 October 2012. The Company was notified of the hearing and advised to place a copy of the notice of listing on employee noticeboards at the Company’s premises. The notice of listing invited employees to participate in the hearing. No employees attended the hearing or sought to make written submissions.

[12] On the basis of the materials and submissions provided, it is appropriate to make the order sought by the Company under s.319 of the Act. In this regard, I have taken into account the matters set out in s.319(3) of the Act. On balance, the various factors are in favour of making the order sought - the employees covered are not significantly disadvantaged by the order and have not opposed its making, and the order will have benefits in regard to the efficient operation of the supermarket. In all the circumstances I am satisfied that the orders sought should be made.

SENIOR DEPUTY PRESIDENT

 1   AC327505

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<Price code A, AC327505  PR530618 >