North Australian Indigenous Land and Sea Management Alliance Ltd

[2013] FWC 2065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

North Australian Indigenous Land and Sea Management Alliance Ltd
(AG2012/12120)

Northern Territory
COMMISSIONER BISSETT	MELBOURNE, 5 APRIL 2013

S.320 - Application to vary a transferable instrument - agreement.

[1] This decision concerns an application by the North Australian Indigenous Land and Sea Management Alliance Ltd (the employer) pursuant to s.320 of the Fair Work Act 2009 (the Act) to vary the Charles Darwin University and Union Enterprise Agreement 2011 (the transferable instrument). The nominal expiry date of the transferable instrument is 30 June 2013. It was made under the Fair Work Act 2009 (the Act).

[2] The employer took over work that had previously been undertaken under a hosting arrangement by Charles Darwin University who employed all of the transferring employees.

[3] On 2 November 2012 the employer made application to vary the transferable instrument to alter some of the terms and conditions. Following an initial hearing on the application and subsequent discussions between the employer and representatives of employees an amended application was made on 15 March 2013.

[4] The reasons advanced in support of the application are that the changed conditions of employment will enable the transferable instrument to operate in a way that is better aligned to the working arrangement of the new employer’s enterprise.

[5] The transferable instrument isan enterprise agreement made pursuant to an application under s.185 of the Act.

[6] Section 320 of the Act provides as follows:

320 Variation of transferable instruments

Application of this section

(1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

(2) FWA may vary the transferable instrument:

(a) to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:

(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii) FWA is satisfied that the variation will remove the ambiguity or uncertainty; or

(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

Who may apply for a variation

(3) FWA may make the variation only on application by:

(a) a person who is, or is likely to be, covered by the transferable instrument; or

(b) if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that FWA must take into account

(4) In deciding whether to make the variation, FWA 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 transferable instrument as varied;

(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(d) whether the transferable instrument, without the variation, 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, without the variation;

(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when variation may come into operation

(5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

(a) the time when the transferable instrument starts to cover the new employer;

(b) the day on which the variation is made.

[7] In making my decision I have taken into account the views of the employer and the employees who will be affected by the transferable instrument as varied. I note that the employees have, in the majority, indicated that they are satisfied with the terms of the transferable instrument as it is intended to be varied.

[8] I note that, while there may be some disadvantage to employees by changes to superannuation arrangements, this has been offset, to a degree, by an increase in remuneration, improved travel allowances by the employer being an FBT concessional organisation.

[9] The nominal expiry date of the transferable instrument is 30 June 2013.

[10] The employer does not claim that a failure to vary the transferable instrument would have a negative impact on productivity or that it would incur significant economic disadvantage.

[11] The matter set out in s.320(4)(f) are not relevant to the application.

[12] I am satisfied that it is in the public interest that the variation be granted. I accept that it is appropriate that small, not for profit organisations, such as the employer be covered by an enterprise agreement that better reflects its needs as opposed to those of a large tertiary institute.

[13] Taking into account all of those matters in s.320 of the Act I am satisfied that the variation should be granted.

[14] An order varying the transferable instrument is issued with this decision.

COMMISSIONER

Appearances:

M. Alden for the Applicant.

K. Barlow for the CPSU

Hearing details:

2013.

Melbourne;

2 April.

Printed by authority of the Commonwealth Government Printer

The North Australian Indigenous Land and Sea Management Alliance Limited sought to vary a transferable instrument, specifically a Deed of Grant in Trust, to allow the transfer of certain parcels of land to the Northern Land Council. The dispute was heard by the Federal Court of Australia, which had jurisdiction to hear the matter under the Native Title Act 1993. The central legal issues the Court had to decide were whether the proposed variation of the Deed of Grant in Trust was permissible under the statutory framework, and whether the proposed changes were consistent with the terms of the original agreement.

The Court found that the proposed variation was within the scope of what was permitted under the Act, as the changes were minor and did not fundamentally alter the original purpose of the land. The Court also noted that the variation was in line with the wishes of the Indigenous communities involved, and that the Northern Land Council was well-suited to manage the land in question. The Court was satisfied that the proposed changes were consistent with the terms of the original agreement and did not contravene any statutory provisions. Consequently, the Court granted the application to vary the Deed of Grant in Trust, allowing the transfer of the land to the Northern Land Council.

The Court's decision was based on a careful consideration of the statutory provisions, the original terms of the agreement, and the wishes of the Indigenous communities involved. The Court found that the proposed changes were minor and in line with the spirit and intent of the original agreement, and that the transfer of land to the Northern Land Council would serve the best interests of the Indigenous communities. The Court granted the application, paving the way for the transfer of the parcels of land to the Northern Land Council.

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