Opal Packaging Australia Pty Ltd

[2020] FWC 2187

[2020] FWC 2187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Opal Packaging Australia Pty Ltd
(AG2020/1001; AG2020/1003; AG2020/1004; AG2020/1005; AG2020/1006)

COMMISSIONER CIRKOVIC MELBOURNE, 27 APRIL 2020

Application for an order relating to instruments covering new employer and non-transferring employees in agreements.

Introduction

[1] On 7 April 2020, Opal Packaging Australia Pty Ltd (the Applicant) made five applications pursuant to section 319 of the Fair Work Act 2009 (Cth) (the Act) seeking that the Fair Work Commission (the Commission) make orders that the following agreements will cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work as a consequence of the transfer of business from Orora Packaging Australia Pty Ltd (Orora):

•  Orora Bag Solutions Revesby Enterprise Agreement 2019;

•  Orora Cartons Botany Enterprise Agreement 2016;

•  Orora Cartons Regency Park Enterprise Agreement 2018;

•  Orora Cartons Heidelberg Enterprise Agreement 2020; and

•  Orora Fibre Packaging National Enterprise Agreement 2020.

(collectively, the Transferable Instruments)

[2] On 9 April 2020, the matter was allocated to my chambers for consideration.

[3] On 9 April 2020, a notice of listing was sent to the Applicant, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU), being a party to each the Transferable Instruments, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), being a party to the Orora Fibre Packaging National Enterprise Agreement 2020, advising of a mention to be held in relation to the applications.

[4] Initially the AMWU and CEPU indicated that they took “issue with this application” 1 however they subsequently withdrew their objections.2

[5] On 14 April 2020, a mention was held in relation to these applications which was attended by the Applicant, the AMWU and the CEPU.

Background

[6] The following matters do not appear to be in dispute.

[7] I am satisfied that the Applicant has standing to bring this application as a likely new employer under section 319(2)(a) of the Act.

[8] The Applicant is a wholly owned subsidiary of Paper Australia Pty Ltd, which is in turn a subsidiary of Nippon Paper Industries Co. Ltd. The Applicant is purchasing the fibre packaging, paper and recycling and cartons and bags business carried on by Orora and other related bodies corporate in Australia (the Transaction). 3

[9] The Transaction includes the purchase of certain assets and the transfer of certain employees from Orora to the Applicant. As the transaction involves the purchasing of the assets of Orora, I am satisfied a transfer of business will occur from Orora to the Applicant pursuant to section 311(3) of the Act.

[10] Completion of the Transaction is scheduled to occur on 30 April 2020 and the transferring employees to commence with the Applicant at 12:01am AEST 1 May 2020. 4

[11] On the material before me I am satisfied that, absent the orders sought, the Transferable Instruments will not cover non-transferring employees of the Applicant in relation to the transferring work by reason of section 314 of the Act as they appear to be covered by the Graphic Arts, Printing and Publishing Award 2010 or the Manufacturing and Associated Industries Occupations Award 2010 (collectively, the Awards).

Consideration

[12] The discretion to make the orders sought by the Applicant will only be exercised after taking into account the matters enumerated in section 319(3).

[13] The views of the Applicant are clear. It supports the making of the orders and says that absent the making of the orders the terms and conditions of employment for effected employees would be regulated by the Awards. The Applicant submits that the terms and conditions provided for under the Transferable Instruments are “more favourable overall to employees than the relevant modern award”.

[14] The AMWU are entitled to represent the interests of the transferring employees and are a party to the Transferable Instruments.

[15] The CEPU are entitled to represent the interests of the transferring employees in relation to the Orora Fibre Packaging National Enterprise Agreement 2020 and are a party to this agreement.

[16] On 9 April 2020, the Applicant provided to chambers the witness statement of Samantha Lindy Moore, the General Manager of the Human Resources and Business Solutions Group of Paper Australia Pty Ltd. Ms Moore deposed, among other things, that “no offers of employment have been made to any ‘new’ (non-transferring) employees”.

[17] I am satisfied that non-transferring employees would not be disadvantaged in relation to their terms and conditions of employment because absent the orders sought, such employees would be covered by the Awards applicable to the transferring work performed by them. Each of the Transferable Instruments provides for terms and conditions of employment superior to the relevant applicable modern award. Furthermore, the nominal expiry dates for the Transferable Instruments are 31 March 2022, 31 May 2020, 15 January 2022, 26 August 2021 5 and 30 September 2022. I have given consideration to this in making my decision.

[18] It is not suggested by the Applicant, AMWU or the CEPU that coverage by the Transferable Instruments of non-transferring employees would have a negative impact on the productivity of workplaces where it would operate. As to the question of business synergy, I accept that if non-transferring employees are not covered by the transferable instruments that this would have a negative impact on the flexibility of the Applicant’s workplaces covered by the Transferable Instruments and that business synergy would be enhanced by the making of the orders sought. I am also satisfied that it is not contrary to the public interest to make the orders that the Applicant seeks.

Conclusion

[19] Taking into account each of the matters set out in section 319(3) and the material outlined above, I am satisfied that the orders sought should be granted.

[20] Orders giving effect to this decision will be issued separately.

COMMISSIONER

Appearances:

Mr A. Wood of Herbert Smith Freehills for the Applicant

Ms A. Devasia of the AMWU

Mr M. Murphy for the CEPU

Hearing details:

14 April 2020 via telephone

Final written submissions:

23 April 2020 – Email from Herbert Smith Freehills

Printed by authority of the Commonwealth Government Printer

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 1   Email from AMWU dated 12 April 2020.

 2   Email from AMWU dated 21 April 2020; Email from CEPU dated 21 April 2020.

 3   Form F40 filed 7 April 2020 at Q2.3.

 4   Form F40 filed 7 April 2020.

 5   On 16 April 2020 the nominal expiry date of the Orora Cartons Regency Park Enterprise Agreement 2018 was varied to 26 August 2021 from 7 May 2022. See [2020] FWCA 1980.