Origin Energy Limited
[2010] FWA 5277
•15 JULY 2010
[2010] FWA 5277 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Origin Energy Limited
(AG2010/1616)
Oil and gas industry | |
COMMISSIONER LEWIN | MELBOURNE, 15 JULY 2010 |
[1] This Decision concerns an application by Origin Energy Limited (Origin) for orders that the Origin Energy Ltd (Brisbane) Agreement 2008 (the Agreement) that covers Origin Energy Ltd cover the transferring employees Mr Darryl Jones and Mr James Clarke pursuant to s.318 of the Fair Work Act 2009 (the Act).
Background
[2] Origin purchased the LPG distribution part of Boral Resources and the assets that relate to or are used in connection with the transferring work. Origin offered employment to Mr Jones and Mr Clarke, both of whom accepted the offer of employment with Origin.
[3] Mr Jones and Mr Clarke were previously employed with Boral Resources (QLD) Pty Ltd (Boral) under the Boral Transport Metro SEQ Workplace Agreement 2008 (the Boral Agreement). Mr Jones’ employment with Boral was terminated with effect from 12 July 2010. Mr Clarke’s employment with Boral was terminated with effect from 28 June 2010. Mr Jones commenced employment with Origin on 13 July 2010 and Mr Clarke commenced employment on 26 June 2010.
[4] Mr Jones’ and Mr Clarke’s employment will to be covered by the Boral Agreement which is a transferable instrument for the purposes of s.312(1) of the Act by virtue of s.313 of the Act unless Fair Work Australia issues an order pursuant to s.318 of the Act to the effect that Mr Jones and Mr Clarke be covered by the Agreement.
Considerations
[5] Section 318 of the Act deals with Orders relating to instruments covering new employers and transferring employees and prescribes who may apply for an order and the considerations Fair Work Australia must take into account in issuing and order. Section 318 is set out below:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA may make the following orders:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;
(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.
Who may apply for an order
(2) FWA may make the order only on application by any of the following:
(a) the new employer or a person who is likely to be the new employer;
(b) a transferring employee, or an employee who is likely to be a transferring employee;
(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;
(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).
Matters that FWA must take into account
(3) In deciding whether to make the order, 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 order;
(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 an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable 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 transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
...”
[6] Origin is the new employer and therefore an eligible party to make an application for an Order under s.318 of the Act.
Views of the employer
[7] Origin is the applicant in this application and support the application for the Orders.
Views of the employees
[8] At paragraph 5.8 of the Form 40-Application for Orders in Relation to Transfer of Business, Origin submits that it wrote to Mr Jones and Mr Clarke on 25 June 2010 to inform them of Origin’s intention to make an application to Fair Work Australia for orders pursuant to s.318 of the Act. In this correspondence Origin outlined the advantages of employment under the terms and conditions of the Agreement compared to the terms and conditions under the Boral Agreement. The letters to the employees of 25 June 2010 were accompanied by a copy of the Agreement.
[9] On 29 June 2010, I issued a Direction in the following terms:
“Origin Energy Limited is hereby Directed to file all relevant documents relating to the actions of the Applicant in notifying the transferring employees of the Applicant’s intention to make the application by the close of business on Friday 2 July 2010.”
[10] On 1 July 2010 Ms Wendy Fauvel, Origin’s legal representative, filed in the Tribunal the offers of employment to Mr Jones and Mr Clarke dated 18 June 2010. The offers outline the terms and conditions applicable under the Agreement.
[11] Mr Jones and Mr Clark are members of the Transport Workers’ Union (the TWU). A letter from the TWU to Origin’s representatives dated 25 June 2010 accompanied the application. The TWU stated in the letter of 25 June 2010 that the TWU does not object to the making of the order as sought.
[12] On 29 June 2010 I sought the views of the employees by issuing a Notice to Mr Jones, Mr Clarke and the TWU in the following terms:
“Origin Energy Limited has made an application under s.318 of the Fair Work Act 2009 for orders relating to instruments covering a new employer and transferring employees so that a person who transfers their employment from Boral Resources (QLD) Pty Ltd and employed under the Boral Transport Metro SEQ Workplace Agreement 2008 shall, on transferring their employment to Origin Energy Limited, be covered by the Origin Energy Ltd (Brisbane) Agreement 2008.
Under s.318(3)(a)(ii) of the Fair Work Act 2009, in determining whether to make the order, Fair Work Australia must take into account the views of the employees who would be affected by the order.
Should you wish to express your views in relation to this application, you may do so in writing by the close of business on Friday 9 July 2010.”
[13] Mr Jones and Mr Clarke did not file a response to this notice. On 7 July 2010, Mr Hughie Williams of the TWU filed a response to the notice in the following terms:
“We have discussed the matter with our members who are content to be covered by the Origin Entergy Ltd (Brisbane) Agreement 2008.
The TWU does not object to the coverage of our members by the aforementioned agreement.”
[14] I am satisfied that the employees were notified of the intention to transfer their employment from the Boral Agreement to the Agreement and that the employees are content to be covered by the Agreement.
Disadvantages under the terms and conditions of the Agreement
[15] Origin submits that the employees will not be disadvantaged under the terms of the Agreement compared with the terms of the Boral Agreement. In the Form 40-Application for Orders in Relation to Transfer of Business filed in the Tribunal on 28 June 2010 Origin summarise the more advantageous terms and conditions contained in the Agreement including a higher rate of pay, potential wage increases, higher meal and leading hand allowances, higher superannuation contributions, access to Origin’s serious illness and salary continuous plan, higher redundancy pay entitlements and the option to cash out annual leave.
[16] I have read the terms of the Agreement and the Boral Agreement and I am satisfied that the employees will not be disadvantaged by a transfer of employment under the terms of the Agreement.
Nominal expiry date of the Agreement
[17] The nominal expiry date of the Agreement is 17 September 2010.
Negative impact on the new employers productivity
[18] At paragraph 5.15 of the Form 40-Application for Orders in Relation to Transfer of Business, Origin submits that the company may suffer negative impact if the employees were not transferred to the Agreement because Origin would need to review and change the hours of work roster arrangements, may potentially impact on customers, and would also require Origin to reconfigure its payroll systems.
Economic disadvantage to the new employer
[19] There is nothing before me that indicates that Origin would suffer any economic disadvantage by the proposed transfer.
Business Synergy
[20] Origin submits that its business synergy would be affected adversely if Mr Jones and Mr Clarke are not transferred to the Agreement.
Public interest
[21] There is nothing before me that indicates that the proposed transfer is adverse to the public interest.
Conclusion
[22] I have taken into account the considerations outlines in s.318(3) of the Act and, in al the circumstances, am satisfied that Orders pursuant to s.318 of the Act are appropriate. An order will issue accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, AC314569 PR999373 >
0
0
0