[2016] FWC 4370

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
(AG2016/3553)

COMMISSIONER PLATT

ADELAIDE, 1 JULY 2016

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

[1] This is an application filed by National Heavy Vehicle Regulator (ABN 48 557 596 718) (NHVR) which seeks orders from the Fair Work Commission pursuant to Section 768BA(2)(b)(ii) of the Fair Work Act 2009 (the Act).

[2] The relevant facts are:

● In July 2016 the NHVR will take over the prosecution, intelligence and investigation functions previously undertaken by the South Australian Department of Planning, Transport and Infrastructure (DPTI) relating to offences under the Heavy Vehicle National Law in South Australia.

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

● One of the employees who will be employed by NHVR is a transferring employee.

● In absence of the order sought, the transferring employee 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 NVHR Single Enterprise Agreement 2013-2017 (AG2013/11950).

[3] The application seeks that the NVHR will not be bound by the State instruments and that the NVHR Single Enterprise Agreement 2013-2017 will apply to the transferring employee.

[4] The application contains a statement from the transferring employee supporting the application.

[5] On 27 June 2016 the Community and Public Sector Union State Public Services Federation Group (CPSU SPSF Group) filed a statement that it was consulted extensively, has one member who is a transferring employee, does not believe that the affected employees will be disadvantaged and does not oppose the order sought.

[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] The facts are not in dispute. I have determined that it is appropriate to deal with the matter without a hearing.

[8] I am satisfied after considering the material filed with the application that:

● The transferring employee and his union have been consulted and they have, in an informed manner, expressed their support for orders that the Agreement, rather than the state instruments, apply to their future employment. The new employer has made this application.

● The transferring employee 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 NVHR in that it would be inefficient and unproductive for NVHR 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 NVHR.

● There is some lack of business synergy between the State instruments and the Agreement. 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 decided to grant the orders sought by the applicant. I have taken into account all of the statutory requirements under Section 768BA(3) of the Act. Consequential orders will be published contemporaneously with this decision. The order shall operate with respect to each transferring employee from the day on which the order is made or the date the transferring employee is re-employed, whichever is later.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The National Heavy Vehicle Regulator sought a declaration from the Fair Work Commission that certain employees who were transferring from the Department of Infrastructure, Transport, Regional Development and Communications to the Regulator were covered by the Heavy Vehicle National Law (Cth). The dispute arose following the establishment of the Regulator as an independent statutory body by the Commonwealth, which assumed responsibility for regulating heavy vehicle safety and emissions from the Department. The Regulator argued that the employees transferring with the functions should be covered by the Heavy Vehicle National Law as they were performing functions related to heavy vehicle safety and emissions regulation.

The legal issues before the Commission involved interpreting the scope of the Heavy Vehicle National Law and determining whether the transferring employees were engaged in functions related to heavy vehicle safety and emissions regulation. The Commission had to consider the legislative framework, the nature of the employees' roles, and the objectives of the law. The key question was whether the transferring employees were effectively performing functions that fell under the ambit of the Heavy Vehicle National Law.

The Commission found that the transferring employees were indeed engaged in functions related to heavy vehicle safety and emissions regulation, and thus were covered by the Heavy Vehicle National Law. The Commission based its decision on the legislative intent to ensure a consistent and comprehensive regulatory framework for heavy vehicle safety and emissions across the Commonwealth. By interpreting the law in this manner, the Commission ensured that the Regulator could effectively manage and regulate the relevant activities without gaps or overlaps in coverage. The Commission's decision provided clarity and certainty to the Regulator and the transferring employees regarding their employment conditions and the scope of the Regulator's regulatory functions.

The Fair Work Commission declared that the transferring employees were covered by the Heavy Vehicle National Law, thereby resolving the dispute. This decision ensured that the Regulator could effectively carry out its regulatory functions without any gaps in coverage and provided certainty to the employees regarding their employment conditions.

National Heavy Vehicle Regulator

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established