Linfox Australia Pty Ltd - [2013] FWC 3384

[2013] FWC 3384

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Linfox Australia Pty Ltd
(AG2013/6564)

WOOLWORTHS TRANSPORT DEPARTMENT (VICTORIA) ENTERPRISE AGREEMENT 2010-2013
(ODN AG2010/14827) [AE881444]
LINFOX ROAD TRANSPORT AND DISTRIBUTION CENTRES NATIONAL ENTERPRISE AGREEMENT 2011
(ODN AG2011/8234) [AE885455]

Road transport industry

COMMISSIONER HAMPTON

ADELAIDE, 4 JUNE 2013

s.318 - application for an order relating to instruments covering new employer and transferring employees - transfer of business from Woolworths Limited to Linfox Australia Pty Ltd - whether transferring employees should be covered by transferring instrument or enterprise agreement of new employer - consent arrangements as part of comprehensive agreed position - public interest and statutory requirements met - order made.

1. Background

[1] This matter concerns an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Linfox Australia Pty Ltd (Linfox) seeking that orders be made in relation to industrial instruments covering it as the new employer and certain transferring employees.

[2] The context for this application is primarily established by the decision of Woolworths Limited (Woolworths) to outsource the transport functions associated with its heavy vehicle fleet operations at Mulgrave, Hue and Laverton distribution centres in Victoria. These functions are in effect to be contracted to Linfox and this has led to the foreshadowed redundancy of up to approximately 189 drivers presently employed by Woolworths.

[3] The relevant heavy vehicle operations of Woolworths are subject to the coverage and application of the Woolworths Transport Department (Victoria) Enterprise Agreement 2010-2013 (the Woolworths Agreement). The Transport Workers’ Union of Australia (TWU) is also covered by this enterprise agreement.

[4] Linfox for its part is relevantly subject to the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 (the Linfox Agreement). The TWU is also covered by this instrument.

[5] Following the announcement of the outsourcing decision earlier this year, Woolworths consulted with the TWU and the drivers concerned. In February and April 2013, disputes 1 were notified to the Commission regarding the redundancies and the implementation of the Woolworths Agreement in that context. Conciliation in the matter was undertaken by Drake SDP and in due course the matters were referred to me.

[6] As a result of some preliminary proceedings and further discussions between the parties, a comprehensive agreement was reached concerning the application of the Woolworths Agreement, the process by which the drivers concerned would make an election whether to take up employment opportunities with Linfox, and the redundancy arrangements and benefits that would apply. In addition, the TWU and Linfox also reached a related understanding concerning the industrial instrument that would apply in that context.

[7] The s.318 application sought in effect that the Woolworths Agreement not apply to any transferring employees and that the Linfox Agreement apply instead.

[8] Having heard the application on 23 May 2013, I made an order 2 largely in the terms as sought. In so doing, I indicated that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 3384
Decision Date: 4 JUNE 2013

CaseChat Overview and Summary

Linfox Australia Pty Ltd recently appeared before the Fair Work Commission in a case concerning the transfer of business operations from Woolworths Limited. The dispute centred on the applicability of specific instruments to the employees transferring to Linfox, following the sale of certain assets and businesses by Woolworths. The court was tasked with determining whether the transferring employees should be governed by the instrument that was in place at Woolworths or the enterprise agreement of Linfox. This decision was pivotal in ensuring that the transition was legally sound and in compliance with statutory obligations.

The legal issues before the court involved interpreting section 318 of relevant legislation, which pertains to orders relating to instruments covering a new employer and transferring employees. The central question was whether the transfer of business necessitated the continuation of the existing instruments or if the employees should instead be covered by Linfox's enterprise agreement. The court also had to consider the implications of any consent arrangements and whether they aligned with the comprehensive agreed position of the parties involved. Furthermore, the court needed to ensure that the public interest and statutory requirements were met in the course of making any order.

The court determined that the comprehensive agreement reached by the parties, including the consent arrangements, adequately addressed the transition of the employees to Linfox. It was found that these arrangements met the statutory requirements and the public interest, thereby providing a legally robust framework for the transfer. The court concluded that the instruments covering the transferring employees should indeed transition to those of Linfox, reflecting the agreed terms. Consequently, the court made an order in line with the comprehensive position agreed upon by Woolworths and Linfox, ensuring compliance with the relevant legislative provisions.

Orders