Marshall Denning Pty Ltd T/A Marshall Denning

[2018] FWC 7387

[2018] FWC 7387

FAIR WORK COMMISSION

DECISION

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

Marshall Denning Pty Ltd T/A Marshall Denning
(AG2018/6208)

DEPUTY PRESIDENT SAMS SYDNEY, 17 DECEMBER 2018

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

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Marshall Denning Pty Ltd (the ‘applicant’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, the One HPA Certified Agreement 2004-2007 will not cover the below named four employees when they transfer from Ent. Services Australia Pty Ltd to Marshall Denning Pty Ltd:

a. Tiara Cleavely-Millwood;

b. Peter Jacka;

c. Shelley Robertson; and

d. Viktorija Sikos. (collectively, the ‘transferring employees’).

[2] Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

‘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.’

[3] In the applicant’s Form F40 – Application for Orders in Relation to Transfer of Business, Mr Paul Brown and Ms Lucienne Gleeson (Solicitors, Baker & McKenzie) explained the background of the application. In brief, the persons subject to the application were issued and accepted offers of ongoing employment with Marshall Denning Pty Ltd on 23 October 2018. Also attached was a statement of Mr Nicholas Boymal, who is currently employed by the applicant as Vice President, Legal Services. The transferring employees are to have their terms and conditions of employment governed by common law contracts, rather than an enterprise agreement. Should the order be granted, the terms and conditions will be largely maintained, including the preservation of remuneration, as well as service-related entitlements. While the common law contracts do not contain a dispute resolution mechanism, Mr Brown and Ms Gleeson indicated that the transferring employees would have access to the grievance resolution provisions contained in the Legal Services Modern Award 2010.

[4] The transferring employees support the application for an order that the One HPA Certified Agreement 2004-2007 will not cover them in their new employment. So much so is evident from the statement of Mr Boymal, which indicated that the Transferring Employees were aware of the application (evidenced through email correspondence) and that no objection had been raised. For abundant caution, I had cause to write to the transferring employees to seek their views. My Chambers received an email response from Ms Robertson and Ms Viktorija Sokolovska in which they consented to the order sought. My Chambers was subsequently provided with a signed written statement from Mr Jacka stating that he did not oppose the proposed order. Although Ms Cleavely-Millwood did not respond to my email, nor provide a written statement, I am satisfied that she does not object to the application.

[5] Having reviewed the filed documentation and considered the submissions of the parties, I am satisfied that all the requirements of s 318 of the Act have been met. Specifically, I have taken into account all of the matters in s 318(3) in arriving at my decision; noting, in particular, that the transferring employees do not oppose the application and will have comparable remuneration and conditions of employment when engaged by the applicant. Accordingly, I propose to issue the orders sought by the applicant. Orders to that effect accompany the publication of this decision. Pursuant to s 318(4), the order shall take effect from today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702859>