Lion-Beer Spirits & Wine Pty Ltd T/A Lion

[2016] FWC 6115

[2016] FWC 6115

The attached document replaces the document previously issued with the above code on 31 August 2016.

Paragraph numbering has been corrected.

Victoria Fijalski

Associate to Commissioner Lee

31 August 2016

[2016] FWC 6115

FAIR WORK COMMISSION

DECISION

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

Lion-Beer Spirits & Wine Pty Ltd T/A Lion
(AG2016/4266)

COMMISSIONER LEE MELBOURNE, 31 AUGUST 2016

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

[1] An application has been made by Lion-Beer Spirits & Wine Pty Ltd T/A Lion (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to section 318 of the Fair Work Act 2009 (the Act).

[2] The application seeks an order that the J Boag & Son Ltd Enterprise (Brewery Technicians) Agreement 2015 1does not, and will not cover Mr Christopher Whitfield in respect of his employment with Lion Beer Spirits & Wine Pty Ltd.

[3] The application consisted of a Form F40 - Application for orders in relation to transfer of business. I listed the matter for Hearing by Telephone. Ms M Gundrill appeared on behalf of the Applicant and the affected employee Mr C Whitfield appeared on his own behalf.

Legislation

“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.”

Background

[4] Mr Whitfield is employed by the Applicant within the packaging team at the Boags Site in Launceston, Tasmania and has agreed to transfer to the role of brewer at the Little Creatures brewery in Geelong, Victoria.

[5] The Applicant asserts that it is likely that the J Boag & Son Ltd Enterprise (Brewery Technicians) Agreement 2015 would transfer to the new employment of the Applicant pursuant to s.313(1) of the Fair Work Act 2009 (the Act).

[6] The Applicant submits that it and Mr Whitfield do not wish the instrument to transfer and for Mr Whitfield to be covered by a common law contract. Mr Whitfield indicated during the hearing that he supported this view.

Transferrable instrument

[7] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of section 311(1) of the Act.

[8] Section 312 of the Act details instruments that may transfer:

“312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

[9] The J Boag & Son Ltd Enterprise (Brewery Technicians) Agreement 2015 was approved by the Fair Work Commission on 28 August 2015 and pursuant to section 312(1) of the Act is a transferrable instrument.

Who may apply for an order

[10] The application has been made by the new employer (the Applicant). The requirements of section 318(2) have been met.

Matters the Fair Work Commission must take into account (s.318(3))

Section 318(3)(a) - the views of the new employer and the employees who would be affected by the order

[11] The new employer is the Applicant for this order and it supports the making of the order.

[12] The transferring employee who will be affected by the order if granted, Mr Whitfield, indicated at the hearing that he supports the making of the order.

Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[13] The Applicant submits that the transferring employee will not, on an overall basis, be disadvantaged in relation to his terms and conditions of employment if the Commission makes the proposed order.

[14] During the hearing I raised concerns with the Applicant in relation to the number of weekends Mr Whitfield would be required to work. The Applicant has provided written undertakings to satisfy these concerns. A copy of the undertakings is attached in Annexure A.

[15] Having considered all of the material before me, and subject to the undertakings referred to above I am satisfied that the transferring employee will not be disadvantaged by an order in relation to his terms and conditions of employment.

Section 318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement

[16] The nominal expiry date for the J Boag & Son Ltd Enterprise (Brewery Technicians) Agreement 2015 is 31 July 2018. This is a neutral consideration.

Section 318(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[17] The Applicant submits that the order will ensure that there is consistency between the terms and conditions offered to all brewers at the Little Creatures site. Furthermore, it will ensure that all employees engaged as brewers at the site have the same duties and responsibilities and are not subject to different classification descriptions.

Section 318 (e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

[18] The Applicant submits that it would incur administration costs if it were to move from a salaried payroll system to a fortnightly pay system as a result of the transferable instrument covering the new employer. Furthermore, that it would be subject to detailed rostering/hours of work provisions which could impact on the site’s ability to meet its production schedule.

Section 318 (f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

[19] The Applicant submits that while there are some similarities between the beer production requirements and processes at both sites, there is little synergy J Boag & Son Ltd Enterprise (Brewery Technicians) Agreement 2015 and the terms and conditions covered by common law contracts at the Little Creatures site.

[20] The Applicant submits that the instrument formalises terms and conditions which are unique to the Boags site and have been developed in the context of a brewery which has been operating for 135 years in Launceston. Little Creatures is a relatively new brewery in Geelong which has been established in very different market conditions and operates in different market conditions to those in Tasmania. The Little Creatures and Boags sites operate on considerably different scales with the Boags site producing more than twice the volume of beer than that produced at the Little Creatures site.

Furthermore, the Applicant submits that the classifications in the instrument do not adequately reflect the responsibilities of brewers at the Little Creatures site.

Section 318 (g) the public interest

[21] The Applicant submits that to grant the order would not be contrary to the public interest.

Conclusion

[22] Having considered the matters above, it is apparent that most matters weigh towards the granting of the application sought, while some are a neutral consideration. Taking into account each of the matters set out in section 318(3) of the Act, I am satisfied that the order as sought should be granted.

[23] An Order [PR584755] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

M Gundrill for the Applicant

C Whitfield on his own behalf

Hearing details:

2016.

Melbourne (by Telephone):

24 August.

ANNEXURE A

 1   AE415483

Printed by authority of the Commonwealth Government Printer

<Price code A, PR584754>