Mr Wassim Dakarmanji; Eastern Australia Airlines Pty Limited T/A QantasLink

[2018] FWC 7254

[2018] FWC 7254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mr Wassim Dakarmanji; Eastern Australia Airlines Pty Limited T/A QantasLink

(AG2018/6244)

Deputy President Sams SYDNEY, 28 NOVEMBER 2018

1. This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Mr Wassim Dakarmanji and Eastern Australia Airlines Pty Limited T/A QantasLink (collectively referred to as the ‘applicants’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the Jetstar/ASU Agreement 2018 will not apply to them if Mr Dakarmanji transfers from Jetstar Airways Pty Ltd (the ‘old employer’) to Eastern Australian Airlines Pty Limited (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.

1. 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.’

1. In the applicants’ Form F40 – Application for Orders in Relation to Transfer of Business, Mr Dakarmanji and Mr Michael O’Neil (Head of Industrial Relations, Associated Airlines & Services) explained the background of the application. In brief, Mr Dakarmanji has been employed by Jetstar Airways Pty Ltd since 10 February 2014. On 19 November, Mr Dakarmanji commenced a secondment to Eastern Australia Airlines Pty Limited, which will come to an end on 19 March 2019 (if it is not brought to an end beforehand). Mr Dakarmanji has been offered an ongoing position as a Customer Service Agent at Eastern Australia Airlines Pty Ltd as a Customer Service Agent, on the basis that the Commission orders that the Agreement will not cover Mr Dakarmanji or Eastern Australia Airlines Pty Ltd when he commences ongoing employment, and that Mr Dakarmanji resigns his employment with Jetstar Airways Pty Ltd. Should the order be granted, his terms and conditions will vary, with a decrease in annual salary (exclusive of superannuation contributions). It is stated that Mr Dakarmanji has applied for the ongoing role at Eastern Australia Airlines Pty Ltd for personal and career reasons.

1. 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 Dakarmanji’s personal and professional preference for employment with Eastern Australia Airlines Pty Ltd. Accordingly, I propose to issue the 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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