Pinnacle Liquor Group Pty Ltd t/a Dan Murphy’s

[2020] FWC 217

[2020] FWC 217

FAIR WORK COMMISSION

DECISION

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

Pinnacle Liquor Group Pty Ltd t/a Dan Murphy’s
(AG2019/5029)

Retail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 JANUARY 2020

Application for an order re instruments covering new employer and non-transferring employees in agreements – application granted – orders made.

[1] This is an application, filed on 20 December 2019, by Pinnacle Liquor Group Pty Ltd t/a Dan Murphy’s (the ‘applicant’), pursuant to s 319 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’), pursuant to 319(b) that the Dan Murphy’s Agreement 2019 (AE505808)(the ‘Agreement’) will cover the applicant and any non-transferring employees performing the transferring work.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

‘317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

...

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.

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.’

[3] At this juncture, I note the applicant’s request to have this matter dealt with ‘on the papers’. Additionally, the application enclosed a Letter of Support from the Shop, Distributive and Allied Employees’ Association (the ‘SDA’), which is covered by the Agreement. Mr G Dwyer, National Secretary of the SDA, noted the ‘overwhelming approval’ of the Agreement by its members who are existing employees of the applicant.

[4] The applicant provided written submissions in support of its application. These submissions are thorough and comprehensive and address all of the matters the Commission is required to take into account in considering this application. Ms J Digby, Policy Specialist, Workplace Relations, Culture & People of Woolworths Group Limited(‘Woolworths’) described how, upon an upcoming restructure scheme affecting certain assets and liabilities of Woolworths, resulting in certain Woolworths employees being covered by the Agreement becoming transferring employees employed by the applicant. The basis for the application is to ensure any new employees of the applicant who perform the transferring work, will also be covered by the Agreement. In this respect, it would enable business synergy for the operations to avoid difficulties associated with two different sets of terms and conditions for employees at the same workplace/s.

[5] Having considered the detailed submissions of the applicant, the relevant statutory provisions, the support of the SDA and the public interest, I am satisfied that the orders sought by the applicant should be made. Orders giving effect to my decision will be published contemporaneously with this decision, and will take effect from 2 February 2020.

DEPUTY PRESIDENT

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<AE505808  PR715937 >