National Heavy Vehicle Regulator
[2022] FWC 1985
•28 JULY 2022
| [2022] FWC 1985 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.768BG - Application to consolidate orders in relation to non-transferring employees
National Heavy Vehicle Regulator
(AG2022/1898)
| COMMISSIONER SIMPSON | BRISBANE, 28 JULY 2022 |
Application to consolidate orders in relation to non-transferring employees
An application has been made by the National Heavy Vehicle Regulator (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to s.768BG of the Fair Work Act 2009 (the Act).
The Applicant set out their initial submissions and evidence through the Form F40A and Affidavit of Mr Damian Gray, Acting Director People Safety and Culture at the National Heavy Vehicle Regulator (the NHVR). Further, the Applicant requested that the matter be dealt with on the papers.
On 21 June 2022, my chambers sent correspondence to the PSA/CPSU, APESMA (Professionals Australia) and ASU which sought that they advised whether they wished to be heard, and whether they had any objections to the matter being determined on the papers. On 22 June 2022, Together ASU advised my chambers that it didn’t wish to be heard and didn’t have any objections to the matter being determined on the papers. The ASU advised the same on 27 June 2022. APESMA wrote to my chambers on 4 July 2022 and advised they also didn’t have any objections or submissions to raise. This same day the CPSU wrote to my chambers and advised they did wish to be heard but requested further time to consider whether they had any objections to the matter being dealt with on the papers. On 6 July 2022 CPSU confirmed that they consented to the matter being dealt with on the papers.
Given the CPSU’s request to be heard, I set directions for filing. Both the CPSU and the Applicant filed in accordance with the directions.
Relevant background
Currently, Transport for New South Wales (TfNSW) conduct regulatory and enforcement functions on behalf of the NHVR in relation to the application of the Heavy Vehicle National Law (the HVNL) in New South Wales. This includes assessing heavy vehicles and their drivers for compliance with the HVNL. TfNSW is a public sector employer.
From 1 August 2022, the NHVR will take control of the operational and on-road regulatory functions in New South Wales in accordance with the Heavy Vehicle Legislation Amendment (National Regulator) Act 2021 (NSW), such that a number of TfNSW employees will transfer to the NHVR on this date (the Transferring Employees). The NHVR is a national system employer.
A transfer of business will occur between the NHVR and TfNSW pursuant to section 768AD of the Act on the basis that:
- the Transferring Employees' employment with TfNSW will be terminated with effect from 31 July 2022 (the Termination);
- on 1 August 2022, the Transferring Employees will commence employment with the NHVR;
- the work the Transferring Employees will perform for the NHVR will be the same, or substantially the same, as the work the Transferring Employees previously performed for TfNSW (Transferring Work); and
- there is a connection between TfNSW and the NHVR in the form of a transfer of assets.
The Transferring Employees are currently covered by the copied State award being the Roads and Maritime Services Consolidated Salaried Award 2019. The Transferring Employees are to be employed by the NHVR on the basis that their terms and conditions of employment continue to be regulated by the copied State award.
Non-transferring employees may be employed by the NHVR in New South Wales from 1 August 2022 to perform the Transferring Work (the Non-transferring Employees).
At present, there are no Non-transferring Employees that have been employed by the NHVR in New South Wales, and the NHVR does not intend to employ any Non-transferring Employees until after a decision has been made regarding this Application.
Orders sought
The NHVR initially sought the orders that all Non-transferring Employees in New South Wales be covered by the copied State award and not the NHVR Operational EA or the NHVR Administration EA, as either the NHVR Operational EA or the NHVR Administration EA would apply to the Non-transferring Employees in the absence of any order by the Commission under s.768BG of the FW Act. The NHVR submits they are entitled to seek the orders pursuant to section 768BG, as it will be the new employer of both the Transferring Employees and any subsequent Non-transferring Employees (section 768BG(3)(b)(ii) of the FW Act).
In response to the CPSU’s submissions, the Applicant’s submissions of 25 July 2022 amended the orders sought to be as follows:
- The copied State award that will cover the transferring employees and the NHVR because of subsection 768AN(1) at the transferring employee's re-employment time, will apply to and cover the NHVR and all non-transferring employees employed to perform transferring work in the State of New South Wales upon commencement of their employment with the NHVR; and
- The NHVR (Operational and On-Road Regulatory Compliance) Enterprise Agreement 2020 – 2024 and the NHVR Administration and Professionals Enterprise Agreement 2020 – 2024 that cover the NHVR and other non-transferring employees in the States of Queensland, Victoria, South Australia, Tasmania and the Australian Capital Territory will not cover the NHVR and non-transferring employees employed to perform transferring work in New South Wales.
Matters that the FWC must take into account
The NHVR relies upon the following grounds in making the Application under section 768BG of the FW Act:
(a)(i) The views of the employees
There are no Non-transferring Employees that have been employed by the NHVR, and there will be no Non-transferring Employees employed by the NHVR until after a decision has been made regarding this Application. Therefore, the views of any Non-transferring Employees cannot be ascertained.
Mr Gray stated that the NHVR does submit that there would be no opposition to the Application, given the full suite of monetary and non-monetary benefits associated with being covered by the copied State award, will not, on balance, disadvantage the Non-transferring Employees. Mr Gray further stated that the NHVR also notes that the orders sought will ensure that all NHVR employees in New South Wales are covered by the same instrument, thereby helping to ensure productivity and harmonious work arrangements.
Mr Gray stated that on 26 May 2022, the NHVR met with the Public Service Association (PSA) delegates and union officials who represent the Transferring Employees to discuss the ongoing application of the RMS Award beyond transition as the copied State award, in order to ensure the continuity of entitlements sought by the Transferring Employees.
Mr Gray stated that at the meeting, the NHVR also confirmed that it is aware of the Minister's expectation that the terms and conditions under the RMS Award will be maintained for at least two years after transition and that the NHVR is committed to honouring this expectation, which the PSA was favourable towards.
(a)(ii) The views of the new employer
The Applicant submitted that the application of the copied State award to both Transferring Employees and Non-transferring Employees in New South Wales will promote harmonious workplace relations, prevent disparity arising between the Transferring Employees and the Non-transferring Employees, and reduce the costs incurred in the administration of employment conditions in New South Wales. This was corroborated by Mr Gray in his Affidavit.
(b) Whether any employees would be disadvantaged
The Applicant submitted that taking into consideration the full suite of monetary and non-monetary benefits associated with being covered by the copied State award, the Non-transferring Employees will not, on balance, be disadvantaged by the orders sought in this Application.
(c) The nominal expiry date
The Applicant submitted that as the orders sought relate to a copied State award, this matter is irrelevant. Nonetheless, the nominal expiry date of the copied State award is 30 June 2022.
(d) Whether there would be a negative impact on productivity
The Applicant submitted that the need to maintain different employment terms for the Transferring Employees and the Non-transferring Employees, despite them performing the same work in the same location, will impact negatively on productivity and will be a barrier to developing harmonious work arrangements
(e) Whether the new employer would incur significant economic disadvantage
It was submitted by the Applicant that the need to maintain different employment terms for the Transferring Employees and the Non-transferring Employees, despite them performing the same work in the same location, will be an unnecessary and unproductive burden on the NHVR, as it will create administrative difficulties associated with having to apply three different industrial instruments (i.e. different hours and working arrangements (e.g. 35 hour week vs 38 hour week), different allowances, different leave entitlements and processes, and additional time keeping and payroll management systems).
(f) The degree of business synergy between the instruments
The Applicant submitted that there is a lack of business synergy between the copied State award, the NHVR Operational EA and the NHVR Administration EA, not only in relation to pay rates, classifications and duties, but more relevantly in relation to almost all of the terms and conditions applicable under each instrument, there being numerous differences.
(g) The public interest
It was submitted by the Applicant that it is in the public interest for the NHVR to have one industrial instrument cover all of its employees in New South Wales, as this will prevent disparity arising between the Transferring Employees and the Non-transferring Employees. The efficient and effective operation of the business of an employer is also a matter in the public interest, particularly a national regulator, noting that it is not in the public interest for the NHVR employees in New South Wales to be covered by three different industrial instruments.
Having regard to the matters set out above, the NHVR submits that it is clearly in the public interest for the orders sought to be made.
CPSU Submissions
The CPSU submitted that the current employees of TfNSW that will be affected by the transfer are listed in the Affidavit of Mr Gray dated 14 June 2022. The Public Sector Association and Professional Officers’ Association Amalgamated Union of NSW (the Association) currently has union coverage of the Transferring Employees by virtue of the “PSA Rules” registered under the Industrial Relations Act 1996 (NSW). When the Transferring Employees have their employment transferred to the NHVR, the federal counterpart of the Association, the Community and Public Sector Union SPSF Group, NSW Branch (CPSU NSW) will have union coverage of the Transferring Employees and Non-Transferring Employees by virtue of the “Rules of the CPSU, the Community and Public Sector Union Chapter C - SPSF Group, New South Wales Branch” registered under section 161 of the Fair Work (Registered Organisations) Act 2009 (Cth).
The CPSU submitted that under section 768AI of the FW Act, if immediately before the termination time of a transferring employee, a State award was in operation under the industrial law of the State which covered the old State employer and the transferring employee then a copied State award for the transferring employee is taken to come into operation immediately after the termination time. The CPSU submitted that the termination time of a transferring employee is the start of the day the employment of the employee is terminated by old State employer, in this case TfNSW (section 768AE of the FW Act). The CPSU submitted that the copied State award is taken to include the same terms as were in the original State award immediately before the termination time (section s768AI(2) of the FW Act).
It was submitted by the CPSU that the current Road and Maritime Services Consolidated Salaried Award 2019 including the variation made 10 August 2021 is the state Award that covers the employment of the Transferring Employees (the Current State Award) and is the original state Award for the purposes of section s768AI(2) of the FW Act. The nominal expiry date of the Current State Award was 30 June 2022. The CPSU submitted that the Current State Award does not account for an annual salary increase for the 2022-2023 Financial Year. As the copied State award will not come into effect until 1 August 2022, the CPSU submitted that it is not subject to any salary increase under the Annual Wage Review 2022 (Part 5, Schedule 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)). Therefore, the CPSU submitted that if the Application is made by the Commission based on the Current State Award, Transferring Employees and Non-Transferring Employees will not receive an annual salary increase for FY2022-2023.
On 1 July 2022, TfNSW filed an application to vary the State Award with the NSW Industrial Relations Commissions (Variation Application). The Variation Application proposes to vary the Current State Award so that it would remain in force until 30 June 2024. The Variation Application also proposes to increase the salaries and allowances contained in the State Award by 2.53% from the first pay period commencing the date after the variation comes into effect. The Variation Application contemplates a further salary increase of 2.53% 12 months after the commencement date of the variation. The matter has been the subject of conciliation in the NSW Industrial Relations Commission and was listed for further conciliation on 26 July 2022. The award has not been varied as of the date of this submission. If the award is varied prior to 1 August 2022, it will be in force at the time of the transfer therefore the order may need to be varied.
The CPSU submitted that they propose the making of the Consolidation Application that will have effect to the award in force as of the date of transfer.
CONLCUSION
I have reviewed the application documentation and the accompanying material. These documents outline the circumstances which have given rise to the application. Additionally, I have considered the submissions of the parties involved in the matter. I am satisfied that the submissions contained in the application address the relevant legislative requirements which are asserted to provide for a proper basis for the making of the orders sought. Orders will be issued with this decision.
COMMISSIONER
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