National Heavy Vehicle Regulator

[2017] FWC 5178

[2017] FWC 5178

FAIR WORK COMMISSION

REASONS FOR DECISION

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

National Heavy Vehicle Regulator
(AG2017/4187)

COMMISSIONER PLATT ADELAIDE, 9 OCTOBER 2017

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

[1] On 14 September 2017, 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:

• Since 10 February 2014, the South Australian Department of Planning, Transport and Infrastructure (the DPTI) has conducted the regulatory functions, which includes assessing heavy vehicles and their drivers for compliance with the provisions of the law in South Australia, on behalf of the NHVR.



• As of 2 October 2017, the DPTI will no longer conduct the regulatory functions as they will be directly undertaken by the NHVR.



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



• Two 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 South Australian Public Sector Wages Parity Enterprise Agreement Salaried 2014;

● Determinations 1, 2, 3.1, 3.2, 4, 5, 6 and 7 of the Commissioner for Public Sector Employment;

● the South Australian Public Sector Salaried Employees Interim Award; and

● the Public Service (Recreational Leave Loading) Award.

• The NHVR is bound by the NHVR Single Enterprise Agreement 2017-2020.

[3] The application seeks that the NHVR will not be bound by the State instruments and that the NHVR Single Enterprise Agreement 2017-2020 will apply to the transferring employees.

[4] A hearing was conducted by way of telephone on 28 September 2017. A sound file record of the telephone conference was kept. The two transferring employees, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Community Public Sector Union (CPSU) were invited to attend. Mr Matthew Smith and Mr Mason Fettel of counsel and Ms Louise Harlow, Principal Legal Officer, Regulatory and Legal Services at the NHVR, attended on behalf of the NHVR. Mr Michael Rizzo attended on behalf of the ASU and the two transferring employees attended. Permission was granted pursuant to s.596(2)(a) of the Act.

[5] I sought the views of the ASU and the transferring employees who would be affected by the order. The transferring employees and the ASU support the making of this order.

[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 1 was issued on 28 September 2017. 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 ASU at the hearing, that:

• The transferring employees and the ASU have been consulted and they have, in an informed manner, expressed their support for orders that the NHVR 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 his 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 NHVR 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 28 September 2017 determined to issue the order as sought.

COMMISSIONER

Appearances (by telephone):

M.Smith of counsel on behalf of the Applicant.

M.Rizzo on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

Hearing (Conference) details:

2017.

Adelaide:

September 28.

 1   PR596432

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