Loan Market Group Pty Ltd Summary

[2023] FWC 1234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Loan Market Group Pty Ltd

(AG2023/1498)

Banking finance and insurance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 26 MAY 2023

S.318 - Application for an order relating to instruments covering new employer and transferring employees

Loan Market Group Pty Ltd (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the NAB Enterprise Agreement 2016 (NAB Agreement) does not cover the Applicant and any employees who transfer their employment from PCF Group Pty Ltd to the Applicant (Transferring Employees). The Applicant will be the new employer of relevant Transferring Employees. The NAB Agreement nominally expired on 2 October 2019.

The Applicant has filed a witness statement in support of its application, made by Ms Carly Lloyd, Group Executive - People & Culture of the Applicant, dated 19 May 2023. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Ms Lloyd, and the submissions made in the Form F40 Application filed in this matter. Specifically, I note that the relevant Transferring Employees support (by majority) the order/s sought by the Applicant, and that such relevant Transferring Employees will not be disadvantaged overall (in their terms and conditions of employment) if the orders sought are made. Further, the NAB Agreement is likely to have a negative impact upon the productivity of the Applicant’s workplace, and there is a lack of business synergy between the NAB Agreement and the work performed by the Applicant and Transferring Employees. I consider that the order sought by the Applicant is in the public interest as it would allow all of the Applicant’s employees to all be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I note that none of the criteria weigh against the making of the orders sought. I have therefore determined to exercise my discretion to make the orders sought by the Applicant pursuant to s.318(1) of the Act. An order in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Loan Market Group Pty Ltd applied for an order under section 318 of the Fair Work Act 2009, seeking to exclude itself and transferring employees from the coverage of the NAB Enterprise Agreement 2016. The applicant, Loan Market Group, intended to become the new employer of employees transferring from PCF Group Pty Ltd, and sought to avoid the applicability of the expired NAB Agreement to its operations and the transferring employees.

The central legal issue was whether the Fair Work Commission should exercise its discretion to exclude Loan Market Group and the transferring employees from the NAB Agreement, considering the specific factors outlined in section 318(3) of the Act. The applicant argued that the NAB Agreement was not well-suited to its business and that its application would negatively impact workplace productivity. The applicant also submitted that the transferring employees, by majority, supported the exclusion from the NAB Agreement and that they would not be disadvantaged by such an exclusion.

The Deputy President considered the evidence and submissions presented by Loan Market Group, particularly the witness statement of Ms Carly Lloyd, Group Executive - People & Culture. The Deputy President noted that the transferring employees supported the exclusion of the NAB Agreement, and that there was a lack of business synergy between the NAB Agreement and Loan Market Group’s operations. Additionally, it was found that the exclusion would promote a harmonious and productive workplace by ensuring consistent terms and benefits for all employees. Taking into account the matters set out in section 318(3) of the Act, the Deputy President determined that none of the criteria weighed against making the orders sought by Loan Market Group. Consequently, the Deputy President exercised their discretion to grant the orders sought by the applicant.

The Fair Work Commission issued an order pursuant to section 318(1) of the Act, excluding Loan Market Group and the transferring employees from the coverage of the NAB Enterprise Agreement 2016. This order will come into effect concurrently with the decision.

Loan Market Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established