Opal Packaging Australia Pty Ltd

[2020] FWC 1780

[2020] FWC 1780

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
(AG2020/848; AG2020/850)

COMMISSIONER CIRKOVIC MELBOURNE, 2 APRIL 2020

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

Introduction

[1] On 24 March 2020, Opal Packaging Australia Pty Ltd (the Applicant) made two applications pursuant to section 319 of the Fair Work Act 2009 (Cth) (the Act) seeking that the Fair Work Commission make orders that the Orora Paper Botany – B9 Machine – Enterprise Agreement 2019 and the Orora Functional Coatings Enterprise Agreement 2019 (collectively, the Transferable Instruments) 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).

[2] On 24 March 2020, the matter was allocated to my chambers for consideration.

[3] On 25 March 2020, a notice of listing was sent to the Applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a party to the Transferable Instruments, advising of a mention to be held in relation to the applications.

[4] On 26 March 2020, a mention was held in relation to these applications which was attended by the Applicant only.

[5] On 27 March 2020, the CFMMEU were invited to make submissions in these matters. No submissions were received by chambers.

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). 1

[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 was scheduled to occur on 31 March 2020 and the transferring employees to commence with the Applicant at 12:01am AEST 1 April 2020. However, in an email to my chambers on 26 March 2020, the Applicant advised the finalisation of the Transaction had been delayed by a month with the relevant dates now being 30 April 2020 and 1 May 2020 respectively. 2

[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 Timber Industry Award 2010.

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 Timber Industry Award 2010. 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 CFMMEU are entitled to represent the interests of the transferring employees and are a party to the Transferable Instruments.

[15] Included in the Applicant’s applications was a copy of an email from Ms Denise Campbell-Burns, President of the CFMMEU’s manufacturing division, dated 23 March 2020 confirming that the CFMMEU consents to the applications made in relation to the Transferable Instruments.

[16] On 27 March 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. In the statement Ms Moore deposed, among other things, that “there are currently no non-transferring employees” and “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 relevant modern award 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 July 2022 and 30 June 2022. I have given consideration to this in making my decision.

[18] It is not suggested by the Applicant or the CFMMEU 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

Hearing details:

26 March 2020 via telephone

Final written submissions:

27 March 2020

Printed by authority of the Commonwealth Government Printer

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 1   Form F40 filed 24 March 2020 at Q2.3.

 2   This was confirmed by the Applicant at the mention on 26 March 2020.