Puma Energy (Australia) Services Pty Ltd

[2015] FWC 2989

[2015] FWC 2989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Puma Energy (Australia) Services Pty Ltd
(AG2015/969)

COMMISSIONER SIMPSON BRISBANE, 26 MAY 2015

Application for an order relating to instruments covering new employer and transferring employees.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Puma Energy (Australia) Services Pty Ltd (the Applicant) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument. The Applicant was represented by Herbert Smith Freehills.

[2] The Application has been made in the context of a transfer of business between the Applicant and Australian Fuel Distributors Pty Ltd (AFD), which was a large independent, integrated petroleum company. On 4 February 2013, the Applicant acquired a majority share in Ausfuel Holdings Pty Ltd.

[3] The Applicant says that the Agreement, which previously covered all employees of AFD, passed its nominal expiry date in September 2012 and has not been terminated, but has been replaced by the Puma Energy (Australia) Collective Agreement 2015 (2015 Agreement) to the extent that the 2015 Agreement covers all AFD employees other than senior management and technical employees. Following the acquisition, some of those senior management and technical employees have since ceased to be employed by AFD and commenced employment with the Applicant. There are eleven remaining senior management and technical employees of AFD (the Transferring Senior Employees).

[4] The Applicant and AFD’s intention is that if this application is granted, the remaining eleven Transferring Senior Employees will commence employment with the Applicant and will cease employment with AFD on the date the application is granted, and as a result, AFD will no longer have any employees covered by the Agreement. The Applicant submits that the Transferring Senior Employees will perform the same or substantially the same work for the Applicant as they did for the AFD.

[5] The Applicant provided the Commission with a signed written statement addressing each of the criteria set out in s318.

[6] The Applicant submitted signed Statutory Declarations from the following employees indicating their support of the application.

1. Ms S van Gelder

2. Ms T Neyland

3. Ms C Michels

4. Mr G Penman

5. Mr A Cusack

6. Ms S White

7. Ms R Vitalone

8. Mr D Hocart

9. Mr S Patrick

10. Mr C Ott

11. Ms M Davis

12. Ms S Ryan

13. Ms R Adams

14. Ms R Wynveld

[7] The Applicant seeks the following orders:

A. The Australian Fuel Distributors Pty Ltd/Northern Fuel Distributors Pty Ltd/Ausfuel Pty Ltd Collective Agreement 2009 does not and will not cover Puma Energy (Australia) Services Pty Ltd and any non-transferring employee as defined by the Fair Work Act 2009 (Cth), that is a senior management or technical employee (including any such transferring employee who was employed by the Applicant prior to the date of this Order).

B. The Australian Fuel Distributors Pty Ltd/Northern Fuel Distributors Pty Ltd/Ausfuel Pty Ltd Collective Agreement 2009 does not and will not cover Puma Energy (Australia) Services Pty Ltd and any non-transferring employee as defined by the Fair Work Act (Cth), performing, or that is likely to perform, transferring work as a senior management or technical employee (including any such non-transferring employee who was employed by the Applicant prior to the date of this Order).

[8] Section 318 of the Act Sets out the circumstances in which an order may be made by the Commission:

318 Orders relating to instruments covering new employer and 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 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) 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 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 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 transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

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

[9] On the basis of the material before me I am satisfied that it is not against the public interest to grant the order sought by the Applicant.

[10] Having considered the views of the new employer and the employees, the Commission is satisfied that all the requirements of s.318 of the Act have been met. An order will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR566662>