National Heavy Vehicle Regulator

[2018] FWC 3393

[2018] FWC 3393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768BA - Application for an order about coverage for transferring employees under a state instrument

National Heavy Vehicle Regulator
(AG2018/2167)

COMMISSIONER PLATT ADELAIDE, 8 JUNE 2018

Application for an order about coverage of transferring employees under a state instrument.

[1] On 23 May 2018, the National Heavy Vehicle Regulator (NHVR) filed an application pursuant to Section 768BA(2)(b)(ii) of the Fair Work Act 2009 (the Act), for an order about coverage of transferring employees under a state instrument.

[2] The relevant facts are summarised as follows:

•  From 1 July 2017 the NVHR will take over operational and on-road regulatory work previously undertaken by the Tasmanian Department of State Growth.

•  A transfer of business will occur between the DPTI and NHVR pursuant to s.768AD of the Act.

•  Four of the employees who will be employed by NHVR are transferring employees.

•  In the absence of the order sought, the transferring employees would be bound by the following State instruments:

•  The Public Sector Unions Wages Agreement 2016 (Tas); and

•  the Tasmanian State Service Award.

•  The NHVR is bound by the NVHR Greenfields (Operational and ON-Road Regulatory Compliance Employees) Single Enterprise Agreement 2017-2020 1.

[3] The application seeks that the NHVR will not be bound by the State instruments and that the NVHR Greenfields (Operational and On-Road Regulatory Compliance Employees) Single Enterprise Agreement 2017-2020 will apply to the transferring employees.

[4] A Hearing was conducted by way of telephone on 8 June 2018. A sound file record of the telephone conference was kept. The transferring employees, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Community Public Sector Union (CPSU) were invited to attend. Ms Sarah Sealy of counsel and Ms Cara Black, Principal Legal Officer, Regulatory and Legal Services at the NHVR, attended on behalf of the NHVR. Mr Stuart Roberts, one of the transferring employees also attended. Permission was granted pursuant to s.596(2)(a) of the Act.

[5] Mr Roberts supported the application. The CPSU provided a letter supporting the application. The ASU provided a letter which indicated they did not object to the application. The NVHR submitted correspondence from all transferring employees indicating their support for the application.

[6] Section 768BA of the Act is set out as follows:

“768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re-employment time covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to be a transferring employee;

(ii) the new employer or a person who is likely to be the new employer;

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(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 a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the transferring employee’s re-employment time;

(b) the day on which the order is made.”

[7] At the conclusion of the Hearing, I notified the parties of my decision to issue the order in the terms sought by the application. The Order 2 was issued on 8 June 2018. These are the reasons for my decision.

[8] I am satisfied after considering the material filed with the application, and after seeking the views of the transferring employees and the ASU and the CPSU, that:

•  The transferring employees and the ASU and the CPSU have been consulted and they have, in an informed manner, expressed their support for orders that the NVHR Greenfields (Operational and On-Road Regulatory Compliance Employees) Single Enterprise Agreement 2017-2020, rather than the State instruments, apply to their future employment. The new employer has made this application.

•  The transferring employees will not be disadvantaged in relation to their terms and conditions of employment.

•  I have been advised of the nominal expiry date of the State Agreement.

•  It would be inappropriate for the State instruments to apply to NHVR in that it would be inefficient and unproductive for NHVR to operate under such different and multiple instruments.

•  It was not put to me that a failure to make this order would result in significant economic disadvantage to NHVR.

•  There is some lack of business synergy between the State instruments and the NVHR Greenfields (Operational and On-Road Regulatory Compliance Employees) Single Enterprise Agreement 2017-2020. The public sector conditions and regulations are significantly different to those applying in the private and community sectors.

•  It is in the public interest to approve the application.

[9] I have taken into account all of the statutory requirements under Section 768BA(3) of the Act and on 8 June 2018 determined to issue the Order as sought.

COMMISSIONER

Appearances:

S. Sealy on behalf of the Applicant.

S. Roberts a transferring employee.

Hearing details:

2018.
Adelaide:

June 8.

 1   AE424741.

 2   PR607986.

Printed by authority of the Commonwealth Government Printer

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