Mr Joshua McNaughton; Qantas Road Express Pty Ltd

[2018] FWC 7146

[2018] FWC 7146

FAIR WORK COMMISSION

DECISION

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

Mr Joshua McNaughton; Qantas Road Express Pty Ltd
(AG2018/6430)

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 26 NOVEMBER 2018

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Mr Joshua McNaughton and Qantas Road Express (‘QRE’) (collectively referred to as the ‘applicants’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (the ‘Agreement’) not apply to them if Mr Joshua McNaughton transfers from Qantas Ground Services Pty Limited (‘QGS’ or the ‘old employer’) to the new employer, QRE (s 311). Both companies are associated entities for the purpose of s 311(6) of the Act, within the meaning of s 50AAA of the Corporations Act 2001.

[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 applicants’ Form F40 - Application for Orders in Relation to Transfer of Business, Mr McNaughton (of Qantas) explained the background to the application. In brief, Mr McNaughton has been employed by QGS for approximately 5 months. On 1 November 2018, he accepted a secondment with QRE in the role of Local Driver. During the secondment, Mr McNaughton was required to take leave without pay from his previous role with QGS as Ground Crew Trainee. QRE has made a conditional offer to Mr McNaughton for an ongoing position as Local Driver, on the basis that the Commission orders that the Agreement will not cover either Mr McNaughton, or QRE, when he commences ongoing employment, and that Mr McNaughton resign from his employment with QGS. Should the order be granted, his terms and conditions will vary, with an increase in annual salary (exclusive of superannuation contributions) as well as the role becoming full-time.

[4] Having reviewed the filed documentation and considered the submissions of the applicants, 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 and note, in particular, that Mr McNaughton’s preference is to retain ongoing employment with QRE, rather than taking leave without pay. Accordingly, I propose to issue orders sought by the applicants, which accompany the publication of this decision. Pursuant to s 318(4), and at the request of the applicants, the orders shall take effect from today.

DEPUTY PRESIDENT

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