Orora Packaging Australia Pty Ltd

[2014] FWC 1985

[2014] FWC 1985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319—Transferable instrument

Orora Packaging Australia Pty Ltd
(AG2014/150, AG2014/155, AG2014/143, AG2014/51, AG2014/152, AG2014/147, AG2014/146, AG2014/145, AG2014/148, AG2014/144, AG2014/149, AG2014/153, AG2014/142 and AG2014/154)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 25 MARCH 2014

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

Introduction

[1] On 6, 7 and 13 March 2014 I made orders 1 that the Amcor Beverage Cans Dandenong Enterprise Agreement 2012-2015 , Amcor Botany Mill - Paper Machine B9 - Enterprise Agreement 2012 , Amcor Functional Coatings Agreement 2013 , Amcor Cartons Zillmere Enterprise Agreement 2011 , Amcor Cartons Botany Enterprise Agreement 2013 , Amcor Cartons Regency Park Enterprise Agreement 2012 , Amcor St Regis Bates Keon Park Enterprise Agreement 2012 , Amcor St Regis Bates Revesby Enterprise Agreement 2011 , Amcor Fibre Packaging National Enterprise Agreement 2013 , Amcor Beverages Revesby Enterprise Agreement 2013 , AMCOR Beverage Cans Rocklea 2 Piece Partnership Agreement 2012 , Amcor Closure Systems Pty Ltd Dudley Park Employee Collective Agreement 2013, Amcor Beverage Cans (Canning Vale) Enterprise Agreement 2012, Amcor Beverage Cans - Australasia, Ballarat End Plant, Employee Collective Agreement 2013 (collectively “transferable instruments”) will cover non-transferring Orora Packaging Australia Pty Ltd (Orora Packaging) employees who perform, or are likely to perform transferring work as a consequence of a transfer business from Orora Limited (Orora). The orders that I made commence operation on the date that a non-transferring employee of Amcor starts to perform the transferring work for Amcor. These are my reasons for doing so.

Background

[2] The following matters are not in dispute. Orora and Orora Packaging are associated entities within the meaning of the Fair Work Act 2009 (Act) and s 50AAA the Corporations Act 2001. A transfer of business from Orora to Orora Packaging within the meaning of s 311 occurred on 1 March 2014. The work performed by transferring employees for Orora Packaging is the same as the work that transferring employees performed for Orora. As a consequence the transferable instruments which covered Orora and each transferring employee, now cover Orora Packaging and each transferring employee in relation to the transferring work. Orora Packaging wishes, and is likely, to engage new employees to also perform the transferring work.

[3] The transferable instruments will not cover a non-transferring employee of Orora in relation to the transferring work by reason of s 314 because the non-transferring employees would be covered by either the Timber Industry Award 2012, Graphic Arts Printing and Publishing Award 2010 or the Manufacturing Industry and Associated Occupations Award 2010. On 28 January 2014 Orora Packaging applied for orders under s.319 in respect of the coverage of non-transferring employee by the transferable instruments.

[4] Orora Packaging has standing to make the application because it is the new employer 2.

Consideration

[5] The discretion to make the orders sought by Orora Packaging will only be exercised after taking into account the matters enumerated in s319 (3).

[6] The views of Orora Packaging are clear. It supports the making of the order and says that absent the making of such an order there will be a significant negative impact on the flexibility of operations at each of the sites that are covered by the respective transferable instruments.

[7] The AMWU, CFMEU, and CEPU (collectively “the Unions”) that are entitled to represent the industrial interests of both transferring and any non-transferring employees who will perform the transferring work support Orora Packaging’s applications. On the sites where Unions are not present, non-transferring employees have indicated support for the applications.

[8] 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.

[9] It is not suggested by either Orora Packaging or the Unions that the coverage by the transferable instruments of non-transferring employees would have a negative impact on the productivity of Orora Packaging’s various workplaces at which the agreements operate. Nor was it suggested that Orora Packaging would incur and significant economic disadvantage as a result of the transferable instruments covering the new employer and the non-transferring employees. 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 Orora Packaging’s various workplaces covered by the transferring 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 Orora Packaging seeks.

Conclusion

[10] Orders giving effect to this decision have previously been issued and will commence operation on the date that a non-transferring employee of Orora Packaging starts to perform the transferring work for Orora Packaging that is on or after the date of the applicable order.

DEPUTY PRESIDENT

 1   PR548454, PR548453, PR548452, PR548451, PR548450, PR548448, PR548447, PR548445, PR548433, PR548435, PR548456, PR548457, PR548638, PR548465

 2   See s 319(2)(a)

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548955>