Meat People Pty Ltd

[2015] FWC 7522

[2015] FWC 7522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Meat People Pty Ltd
(AG2015/4665)

REGIONAL WORKFORCE MANAGEMENT PTY LTD ENTERPRISE AGREEMENT 2014

Meat Industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 OCTOBER 2015

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

[1] Meat People Pty Ltd (Meat People) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an Order that the Regional Workforce Management Pty Ltd Enterprise Agreement 2014 (the Agreement) covers non-transferring employees of Meat People who are likely to perform transferring work in respect of work covered by the Agreement.

[2] Meat People relies upon a statement of Mr Dominic Quilligan, Director of Meat People, in support of the application. Meat People is a member of the AWX Group. Regional Workforce Management Pty Ltd (RWM), the employer party to the Agreement, is also a member of the AWX Group. Meat People and RWM are associated entities.

[3] Meat People was incorporated on 5 August 2015. Subject to the Commission issuing the order sought, Meat People intends to employ some employees currently employed by RWM to do the same or similar work (transferring employees). Meat People does not currently engage any employees and has not yet commenced business operations. It intends to do so, subject to an order being issued by the Commission under s.319 of the Act. The Order is sought to cover new employees engaged by Meat People (non-transferring employees) who are likely to perform transferring work covered by the Agreement.

Relevant legislation

[4] Meat People applies for an Order pursuant to s.319(b) of the Act. Section 319 of the Act states:

“319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

[5] A ‘transferrable instrument’ is defined by s.312(1) as follows:

“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.”

[6] The Agreement is an enterprise agreement that was approved by the Commission on 20 February 2015; it is a transferable instrument. The Agreement is likely to cover Meat People as a result of the operation of s.313(1) of the Act, once it begins to employ transferring employees of RWM. As such, an Order under s.319(1)(b) of the Act is capable of being made.

[7] I am satisfied that Meat People is entitled to apply for an Order as the likely new employer. I have taken into account the material provided by Meat People in support of the application, and the matters listed in s.319(3) of the Act. In particular I have considered the views of Meat People and am satisfied that there are currently no employees affected by the Order. I am further satisfied that the making of the Order would not disadvantage any employee in relation to the terms and conditions of their employment.

[8] I am satisfied the Order should be issued. An Order [PR573511], will issue with this decision and take effect from the time when non-transferring employees start to perform the transferring work for Meat People.

DEPUTY PRESIDENT

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