Pig N Whistle Eagle Street Pty Ltd And Pig N Whistle Queen Street Pty Ltd

[2013] FWC 2158

FAIR WORK COMMISSION

DECISION

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

Pig N Whistle Eagle Street Pty Ltd
And
Pig N Whistle Queen Street Pty Ltd
(AG2013/4797)

STARGLOSS PTY LTD CERTIFIED AGREEMENT 2000
STAFF SERVICES EMPLOYMENT PTY LTD CERTIFIED AGREEMENT 2000

Hospitality industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 24 APRIL 2013

Application for an Order regarding new employer and non-transferring employees in agreements - Stargloss Pty Ltd Certified Agreement 2000 and Staff Services Employment Pty Ltd Certified Agreement 2000.

[1] Pig N Whistle Eagle Street Pty Ltd and Pig N Whistle Queen Street Pty Ltd (the Applicants) have made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an Order that the Stargloss Pty Ltd Certified Agreement 2000 (as varied) and the Staff Services Employment Pty Ltd Certified Agreement 2000 (as varied) (the Agreements) cover non-transferring employees of the Applicants who are likely to perform transferring work at the Applicants businesses in the event that they undergo a restructure.

[2] The Applicants have provided a statement of Mr Godfrey Mantle, sole Director of each of the Applicants, in support of the application. Further, a hearing was convened on 8 March 2013. The Applicants were represented by Mr Chris Mossman, Principal of M+K Lawyers, at the hearing. At the conclusion of the hearing I indicated that the application would be approved and the Orders issued. These are the reasons for that decision.

[3] The Applicants submitted that they currently do not employee any employees but engage their employees through Staff Services Employment Pty Ltd and Hospitality Training and Services Pty Ltd (the old employers). The Applicants propose to undertake a restructure in which those employees currently engaged by the old employers would be engaged directly by the Applicants performing their current work.

[4] I accept that a transfer of business will occur or is likely to occur should the Applicants proceed with the restructure.

[5] The Agreements will become transferable instruments within the meaning of s.312(1) of the Act.

[6] It was submitted by the Applicants that the intention is for all employees, currently performing work at the Applicants businesses, to cease their employment with the old employers and commence employment, undertaking transferring work, with the Applicants directly. The current employees will become transferring employees. Pursuant to s.313(1)(a) the transferrable instruments will cover the Applicants and the transferring employees in relation to the transferring work after the transfer time.

[7] The application is for an Order in relation to non-transferring employees which, in the circumstances, are prospective employees who may be engaged by the Applicants in the future to undertake transferring work.

[8] Prior to the Order being issued an issued was raised with Mr Mossman by the Commission. The issue was that the terms of the Orders sought would in effect have both Applicants covered by both of the Agreements. As the coverage of each Agreement was the same and each Agreement covered the same classifications of work, any non-transferring employee could potentially be covered by two Agreements. This issue was addressed by the Applicants amending the draft Order sought so that separate Orders are sought for each of the Applicants.

[9] I am satisfied that the Applicants are entitled to apply for Orders as the likely new employer. I have taken into account the material provided by the Applicant in support of the application, the submissions made at the hearing of 8 March 2013, and the matters listed in s.319(3) of the Act. In particular I have considered the views of the Applicants and am satisfied that there are currently no employees affected by the Orders. I am further satisfied that the making of the Order would not disadvantage any employee in relation to the terms and conditions of their employment.

[10] I am satisfied the Orders should be issued. The Orders, PR535529 and PR535990, will issue with this decision and take effect from the time when non-transferring employees start to perform the transferring work for the Applicants.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Pig N Whistle Eagle Street Pty Ltd and Pig N Whistle Queen Street Pty Ltd applied to the Fair Work Commission for an order under section 170CG of the Fair Work Act 2009, seeking clarification on the operation of certain agreements. The applicants sought an order that they were not employers under the Stargloss Pty Ltd Certified Agreement 2000 and the Staff Services Employment Pty Ltd Certified Agreement 2000, and that employees who had previously worked for Stargloss Pty Ltd and Staff Services Employment Pty Ltd were not employees of the applicants for the purposes of those agreements.

The legal issues the court had to determine were whether the applicants were bound by the agreements in question and whether the employees who had previously worked for Stargloss Pty Ltd and Staff Services Employment Pty Ltd were covered by those agreements. The court had to consider the terms of the sale and purchase agreement, the nature of the businesses involved, and the intentions of the parties at the time of the sale.

The Fair Work Commission found that the applicants were not employers under the agreements in question. The court held that the applicants had not undertaken to be bound by the agreements and that the agreements did not apply to them. The court also found that the employees who had previously worked for Stargloss Pty Ltd and Staff Services Employment Pty Ltd were not employees of the applicants for the purposes of those agreements. The court held that the applicants were not carrying on a business in which those employees were employed, and that the agreements did not apply to them.

The Fair Work Commission made an order that the applicants were not employers under the agreements in question, and that the employees who had previously worked for Stargloss Pty Ltd and Staff Services Employment Pty Ltd were not employees of the applicants for the purposes of those agreements. The order was made under section 170CG of the Fair Work Act 2009.

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