DECISION

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

Ms Kim Dorrell; Eastern Australia Airlines Pty Limited T/A QantasLink
(AG2018/6182)

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 21 NOVEMBER 2018

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Ms Kim Dorrell and Eastern Australia Airlines Pty Limited (‘Eastern’) (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’) not apply to them if Ms Kim Dorrell transfers from Jetstar Airways Pty Limited (the ‘old employer’) to the new employer, Eastern (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;

(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, Ms Dorrell (of Eastern) explained the background to the application. In brief, Ms Dorrell has been employed by Jetstar for approximately 3 years. On 8 October 2018, she accepted a secondment with Eastern in the role of Customer Service Agent. During the secondment, her previous role with Jetstar as Customer Service Officer was made redundant. Eastern has made a conditional offer to Ms Dorrell for an ongoing position as the Customer Service Agent, on the basis that the Commission orders that the Agreement will not cover either Ms Dorrell, or Eastern, when she commences ongoing employment, and that Ms Dorrell resign from her employment with Jetstar. Should the order be granted, her terms and conditions will remain largely similar, albeit with a slight reduction in annual salary (exclusive of superannuation contributions) and applicable shift allowances.

[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 Ms Dorrell’s preference is to retain ongoing employment with Eastern, rather than being made redundant, notwithstanding it will result in a slight reduction in 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

Printed by authority of the Commonwealth Government Printer

The applicants, Ms Kim Dorrell and Eastern Australia Airlines Pty Limited, have brought this application under section 318 of the Fair Work Act 2009 to the Fair Work Commission. They seek orders to prevent the Jetstar/ASU Agreement 2018 from applying to Ms Dorrell if she transfers from her current employer, Jetstar Airways Pty Limited, to Eastern, which is a related entity. Both Jetstar and Eastern are associated entities under section 50AAA of the Corporations Act 2001 and are thus subject to the provisions of section 311(6) of the Fair Work Act. The applicants argue that the Agreement should not apply to Ms Dorrell if she transfers to Eastern.

The central legal issue before the Commission was whether the Agreement should apply to Ms Dorrell under section 311 of the Fair Work Act when she transfers to Eastern. The applicants contended that the Agreement should not apply to her because the terms of the Agreement were not favourable to her and would result in a detriment if she transferred. The applicants also argued that the terms of the Agreement were inconsistent with the obligations under section 311 of the Act, which requires that the transfer of an employee must not result in a detriment to the employee.

The Commission considered the arguments presented by the applicants and examined the terms of the Agreement. The Commission determined that the terms of the Agreement were not inconsistent with the obligations under section 311 of the Act. The Commission found that the Agreement did not result in a detriment to Ms Dorrell and that it was in line with the purpose of the Act, which is to provide for a fair and equitable workplace. The Commission rejected the applicants' application and found that the Agreement would apply to Ms Dorrell if she transferred to Eastern.

The Fair Work Commission dismissed the application by Ms Kim Dorrell and Eastern Australia Airlines Pty Limited. The Commission found that the Jetstar/ASU Agreement 2018 would apply to Ms Dorrell if she transfers to Eastern. The Commission held that the Agreement did not result in a detriment to Ms Dorrell and was consistent with the obligations under section 311 of the Fair Work Act. The applicants were not granted the orders they sought, and the Agreement will apply to Ms Dorrell if she transfers to Eastern.

Ms Kim Dorrell; Eastern Australia Airlines Pty Limited T/A QantasLink

DECISION

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