Ms Heather Herzog; Qantas Airways Limited T/A Qantas

[2019] FWC 5437

[2019] FWC 5437

FAIR WORK COMMISSION

DECISION

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

Ms Heather Herzog; Qantas Airways Limited T/A Qantas
(AG2019/2373)

Airline operations
DEPUTY PRESIDENT CROSS	SYDNEY, 6 AUGUST 2019

Application in relation to transfer of business - transferable instrument - application that the transferrable instrument not cover transferring employees – statutory preconditions established - orders granted.

[1] This is an application, pursuant to s.318 of the Fair Work Act 2009 (Cth) (the “Act”) filed by Ms Heather Herzog and Qantas Airways Limited (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 (the “Agreement”) will not apply to the Applicants if Ms Herzog transfers from Jetstar Airways Pty Ltd (“Jetstar”) to Qantas Airways Limited (s.311). Both companies are associated entities for the purposes of s.311(6) of the Act, within the meaning of s.50AAA of the Corporations Act 2001 (Cth).

[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;

(b)  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 a Transfer of Business – Ms Herzog and Mr Simon Brown (Head of Industrial Relations, Qantas Airways Limited) explained the background to the application.

[4] In brief, Ms Herzog has been employed by Jetstar on a part-time basis since 28 November, 2016 as a Customer Service Officer. On 2 October, 2017, Ms Herzog commenced a maximum term secondment with Qantas Airways Limited, which was to come to an end on 24 July, 2019 (if it was not brought to an end beforehand). This secondment has involved Ms Herzog taking leave without pay from her employment with Jetstar and taking up employment on a part-time, maximum term basis with Qantas Airways Limited in the role of First Host for two consecutive maternity leave replacements. Ms Herzog has also been offered an ongoing position as a Customer Service Agent with Qantas Airways Limited, subject to the approval of this application by the Commission and Ms Herzog resigning from her employment with Jetstar. The work she will perform as a Customer Service Agent – International Business Lounge with Qantas Airways Limited will be the same, or substantially the same, as the work she performed at Jetstar.

[5] 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, Ms Herzog’s personal and professional reasons for seeking employment with Qantas Airways Limited. Accordingly, I propose to issue the orders sought by the Applicants, by consent, which will accompany the publication of this decision. Pursuant to s.318(4) of the Act, the orders shall take effect from today.

DEPUTY PRESIDENT

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