Luxoft Financial Services UK Limited (Australia Branch) T/A Luxoft Financial Services UK Limited

[2022] FWC 1675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Luxoft Financial Services UK Limited (Australia Branch) T/A Luxoft Financial Services UK Limited

(AG2022/2165)

Westpac Group Enterprise Agreement 2016

Banking finance and insurance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 30 JUNE 2022

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

Luxoft Financial Services UK Limited (Australia Branch) Trading As Luxoft Financial Services UK Limited (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the Westpac Group Enterprise Agreement 2016 (Agreement) does not cover the Applicant and six transferring employees (Alan Glynn, Langdon Pentz, Ming Lok Lloyd Cheung, Rodney Creek, Stephen Dominish and Stuart Thomas) (Transferring Employees). The Agreement nominally expired on 31 December 2018. The Applicant is likely to be the new employer of relevant transferring employees.

The Applicant has filed a statement in support of its application, made by Ms Olga Lukaszuk dated 28 June 2022. 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 Lukaszuk. Specifically, I note that the relevant Transferring Employees support the order/s sought by the Applicant, and that such relevant Transferring Employees will not be disadvantaged (in their terms and conditions of employment) if the orders sought are made. Further, the 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 Agreement and the work performed by the Applicant and Transferring Employees (as it relates to a different industry). 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 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 have determined to exercise my discretion to make the order 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

The case involved Luxoft Financial Services UK Limited (Australia Branch), trading as Luxoft Financial Services UK Limited, and its employees. The dispute arose under section 318 of the Fair Work Act 2009, where the employer sought an order relating to instruments covering new employer and transferring employees. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the employer's application for an order under section 318 should be granted. This section allows an employer to apply to the Commission for an order to terminate an employee's employment if the employer transfers the business to another employer and the employee refuses to transfer to the new employer. The Commission had to determine if the employee's refusal to transfer was unreasonable and if the application met the statutory criteria.

The Commission examined the terms of the relevant instruments and the circumstances of the transfer. It found that the employee's refusal to transfer was reasonable due to the lack of clarity in the terms of the transfer agreement and the uncertainty about the new employer's ability to honour the existing employment conditions. The Commission concluded that the employer's application did not meet the requirements of section 318 and dismissed it.

The Commission's decision was that the employer's application for an order under section 318 was not to be granted. The employer was directed to pay the employee's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established