Pilbara Logistics Pty Ltd T/A PTES

[2014] FWC 7824

[2014] FWC 7824

FAIR WORK COMMISSION

DECISION

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

Pilbara Logistics Pty Ltd T/A PTES
(AG2014/7246) (AG2014/7247)

COMMISSIONER WILLIAMS PERTH, 6 NOVEMBER 2014

Transferable instrument.

[1] This matter concerns two applications made under section 319 of the Fair Work Act 2009 by Pilbara Logistics Pty Ltd T/A PTES (PTES or the applicant).

[2] The applicant seeks orders that the Pilbara Logistics (WA) Pty Ltd Newman Enterprise Agreement 2012 [AE895237] and the Pilbara Logistics (WA) Pty Ltd Waste Management Services for Cloudbreak and Christmas Creek TWU Enterprise Agreement 2012 [AE891840] (collectively, the Agreements) will cover all transferring and non-transferring employees who are employed by PTES in any role that falls within coverage of the Agreements.

Background

[3] PTES has purchased the business operations of Pilbara Logistics (WA) Pty Ltd that had been performed under the Agreements. The employees of Pilbara Logistics (WA) Pty Ltd whom had been covered by the Agreements have been employed by PTES to carry out the same work.

Transferring employees

[4] As explained at the hearing of this matter by virtue of section 312 and 313 of the Act, set out below, both PTES and each transferring employee is automatically covered by one of the Agreements dependent on their work location.

“312  Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

“313  Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

(2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer.

(3) This section has effect subject to any FWC order under subsection 318(1).”

[5] Consequently this decision only deals with the non-transferring employees to be engaged in the future.

Non-transferring employees

[6] The relevant provision of the Act is section 319 (1)(b) below.

“319  Orders relating to instruments covering new employer and non-transferring employees

Orders that the FWC may make

(1) The FWC 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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

Who may apply for an order

(2) The FWC 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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 the FWC must take into account

(3) In deciding whether to make the order, the FWC 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.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

[7] Based on the evidence provided by Mr Selfe the HR Manager of PTES at the hearing and taking into account the matters in section 319(3) of the Act I am satisfied that an order should be made for the Agreements to cover the non-transferring employees.

[8] An order to that effect will be made in conjunction with this decision.

COMMISSIONER

Appearances:

G Selfe on behalf of the applicant.

Hearing details:

2014.

Perth:

November 3.

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