Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union
[2012] FWA 10656
•19 DECEMBER 2012
[2012] FWA 10656 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Qantas Airways Limited
v
Australian Municipal, Administrative, Clerical and Services Union
(AG2012/12819) (AG2012/12820) (AG2012/12880)
Airline operations | |
VICE PRESIDENT WATSON | SYDNEY, 19 DECEMBER 2012 |
Application in relation to a transfer of business - transferrable instrument - application that transferrable instrument not cover transferring employees – conditional offer of employment – application not opposed - Qantas Airways Limited - Fair Work Act 2009 - ss.311, 317 and 318.
Introduction
[1] This decision concerns applications by Qantas Airways Limited (Qantas) for orders under s.318 of the Fair Work Act 2009 (the Act) which relate to instruments covering a new employer and transferring employees in the context of a transfer of business.
[2] The applications concern Christine Kelly, 1 Luisa McDonald,2 and Alexandra Blight3 who are employed by Jetstar Airways Pty Limited (Jetstar) under the Jetstar/ASU Agreement 20114 (the Jetstar Agreement). The terms of the orders are sought under s.318(1) and provide that in relation to Ms Kelly, Ms McDonald and Ms Blight, where there is a transfer of business from Jetstar to Qantas within the meaning of Division 2, Part 2-8 of the Act, the Jetstar Agreement will not cover Qantas.
[3] For the purpose of s.311(6) of the Act, Qantas and Jetstar are associated entities or have a connection by virtue of their status as related bodies corporate, as that term is defined by s.50 of the Corporations Act 2001.
Background
[4] Qantas recently conducted a recruitment and selection process for Customer Service Agent positions at Sydney Airport. Ms Kelly and Ms McDonald who were employed by Jetstar in similar roles voluntarily applied for vacant positions and were selected for the positions.
[5] A permanent full-time Operations Control Officer position also became vacant at Qantas, Ms Blight, a Jetstar employee, voluntarily applied for and was successful in obtaining the position.
The relevant legislation
[6] Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one employer to another employer.
[7] Section 311(1) contains the definition of transfer of business in a wider manner than the ordinary English or legal meaning of the term. The definition is:
“(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).”
[8] Sections 317 and 318 of the Act relevantly provide:
“317 FWA may make orders in relation to a transfer of business
This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.”
Transfer of the Jetstar Agreement
[9] In relation to the factors set out in s.318(3) of the Act, Qantas submits that the proposed orders should be made in order to facilitate the transfer of Ms Kelly, Ms McDonald and Ms Blight. It submits that the order will provide Qantas with certainty and consistency of workplace arrangements for customer service operations at Sydney Airport.
[10] It is submitted that Ms Kelly, Ms McDonald and Ms Blight support and consent to the orders being made and that the decision to transfer between Jetstar and Qantas is a decision that each of the employees have made voluntarily.
[11] Qantas submits that Ms Kelly, Ms McDonald and Ms Blight will not be disadvantaged if the orders are made as the Australian Services Union (Qantas Airways Limited) Agreement 9 5(the Qantas Agreement) provides for employment conditions that are generally more favourable than the conditions provided by the Jetstar Agreement.
[12] Qantas submits that the application of the Jetstar Agreement to Qantas would have a negative impact on Qantas’ workplace. It submits that the need to administer two different sets of terms and conditions and differing classifications for employees performing the same job would negatively impact on workplace productivity.
[13] Qantas submits that there is very little business synergy between the Jetstar Agreement and the workplace instruments that already cover Qantas. It submits that the Qantas Agreement reflects that as a premium domestic and international airline Qantas’ business is substantially different to that of Jetstar.
[14] I am satisfied that the Jetstar Agreement is a transferable instrument as described in s.312(1)(d) of the Act 6 and this circumstance falls within the definition of a transfer of business within s.311 of the Act. The applications have been made pursuant to s.318(1) of the Act. The matters that I am required to take into account when considering whether to grant an order in the terms sought are prescribed by s.318(3) of the Act, as set out above.
[15] I have considered the factors set out in s.318(3). I am of the view that it is appropriate to make orders in relation to the transfer of Ms Kelly, Ms McDonald and Ms Blight’s employment. I have given weight to the fact that Ms Kelly, Ms McDonald and Ms Blight will undertake the transfer voluntarily, and that the transfer provides the employees with career progression opportunities.
[16] The Australian Municipal, Administrative, Clerical and Services Union (ASU) as a party to both the Jetstar and Qantas Agreements has indicated that it does not oppose the applications.
Conclusion
[17] For the reasons above I will make an order that the Jetstar Agreement will not cover Ms Kelly, Ms McDonald or Ms Blight during the period of their employment with Qantas.
VICE PRESIDENT WATSON
1 AG2012/12819.
2 AG2012/12820.
3 AG2012/12880.
4 AE890553.
5 AE885997.
6 As amended by Schedule 11, item 8 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
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