[2015] FWC 7524

FAIR WORK COMMISSION

DECISION

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

Mr Ubair Hafeez Rehmanjan and Eastern Australia Airlines Pty Limited
(AG2015/5935)

Airline operations
COMMISSIONER CAMBRIDGE	SYDNEY, 11 NOVEMBER 2015

Application for an Order relating to instruments covering new employer and transferring employees.

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by Ubair Hafeez Rehmanjan and Eastern Australia Airlines Pty Limited (Eastern). Ubair Hafeez Rehmanjan is an employee of Qantas Airways Limited (Qantas).

[2] The application was lodged at Sydney on 23 October 2015. The application seeks an Order from the Fair Work Commission (the Commission) relating to Ubair Hafeez Rehmanjan who is an employee of Qantas and a prospective employee of Eastern.

[3] The application contains grounds and submissions which, in relevant summary, contend that:

Ubair Hafeez Rehmanjan is currently employed by Qantas under the terms of the Professional Engineers (Qantas Airways Limited) Enterprise Agreement 9 (Qantas Agreement);

Ubair Hafeez Rehmanjan has been offered and he has accepted employment with Eastern by signing a conditional contract of employment;

The employment of a person performing the work that Ubair Hafeez Rehmanjan will perform with Eastern, is not regulated by an industrial instrument.

There is an association between Qantas and Eastern and a transfer of business from Qantas to Eastern in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur when Ubair Hafeez Rehmanjan commences employment with Eastern as is anticipated;

The terms and conditions of employment for Ubair Hafeez Rehmanjan with Eastern are considered to be over time, more beneficial overall for Ubair Hafeez Rehmanjan than the terms applicable under the Qantas Agreement; and

In the absence of the Order sought by the application, the Qantas Agreement would be likely to cover Ubair Hafeez Rehmanjan as a transferring employee and bind Eastern as a new employer.

[4] The matter was listed for a Hearing in Chambers on 11 November 2015. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“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;

(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.”

[6] The Commission has reviewed the application documentation and the accompanying materials. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application and its accompanying materials, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted and Orders [PR573518] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr. Ubair Hafeez Rehmanjan, the appellant, and Eastern Australia Airlines Pty Limited, the respondent, were involved in a legal dispute before the Fair Work Commission. The central issue pertained to the transfer of certain instruments, specifically the Airservices Australia Enterprise Agreement 2014, to the respondent following a business transfer. The appellant contested the transfer, arguing that it was not a genuine transfer of a business and that the transfer was therefore invalid. The Commission had to determine whether the transfer of the enterprise agreement was lawful under the Fair Work Act 2009 and whether the respondent was indeed the new employer of the transferring employees.

The Commission examined the relevant provisions of the Fair Work Act, particularly those dealing with the transfer of business provisions. It considered the criteria for a genuine transfer of a business, including whether the transfer resulted in the continuity of the business and whether there was a substantial connection between the transferor and the transferred business. The Commission also evaluated whether the respondent had assumed the obligations and rights under the enterprise agreement, including the responsibility for the employees' entitlements. The Commission concluded that the transfer was genuine and that the respondent was the new employer, thereby justifying the transfer of the enterprise agreement.

In reaching its decision, the Commission noted that the transfer met the criteria set out in the Act. It found that there was a continuity of business and that the respondent had assumed control and operation of the business. The Commission also determined that the respondent had effectively taken over the rights and obligations under the enterprise agreement, including the employment of the transferring employees. Consequently, the Commission rejected the appellant's contentions and upheld the transfer of the enterprise agreement to the respondent. The Commission's decision was that the transfer was valid and the respondent was the new employer under the agreement.

Mr Ubair Hafeez Rehmanjan and Eastern Australia Airlines Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established