QCatering Riverside Pty Limited

[2011] FWA 4045

[2011] FWA 4045

FAIR WORK AUSTRALIA

DECISION

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

QCatering Riverside Pty Limited
(AG2011/10122)

WATSON, VICE PRESIDENT SYDNEY, 29 JUNE 2011

Transfer of business - transferrable instrument - transfer at request of employee - consent of employee to not be covered by transferring instrument as a condition of transfer - transferring employee Mr Justin Offord.

Introduction

[1] This decision concerns an application made by QCatering Riverside Pty Ltd (Riverside) for an order under section 318 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.

[2] The Applicant, Riverside, is a wholly owned subsidiary of Qantas and a Qantas Group Company. The orders sought are in relation to Mr Justin Offord, a current employee of another wholly owned subsidiary of Qantas and Qantas Group Company, QCatering Limited. Riverside and QCatering Limited are related entities, separate employers and are party to different industrial instruments. Mr Offord is currently employed in Brisbane pursuant to the QCatering Limited Enterprise Agreement 8 (the Transferrable Instrument) and has requested a relocation of employment to Sydney. The Transport Workers’ Union and United Voice are parties to the Transferrable Instrument. Riverside apprehends a potential transfer of business and industrial instrument should the proposed transfer proceed.

Background

[3] Prior to May 2011, Mr Offord requested new employment in Sydney. On 25 May 2011, Riverside offered Mr Offord a conditional offer of employment, the condition being that Riverside first obtain an Order from Fair Work Australia that the Transferrable Instrument not cover Riverside or, in the event that such an order is not issued by Fair Work Australia, that Mr Offord first resign from QCatering before commencing new employment with Riverside.

[4] Mr Offord has accepted the conditional offer of employment. Riverside now applies to Fair Work Australia seeking an Order that the Transferrable Instrument not cover Mr Offord and that he be covered by the QCatering Riverside Enterprise Agreement 2006-2008 (as Varied 2009) (the Riverside Agreement) upon commencing employment at Riverside.

[5] Mr Offord is a member of the Transport Workers’ Union. Neither that union nor the other union party to the Transferrable Instrument, United Voice, have contested the application and both unions have consented to the matter being determined on the material submitted by the Applicant inclusive of the proposed draft orders.

The relevant legislation

[6] Sections 317 and 318 of the Act relevantly provide as follows:

“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.

Consideration

[7] 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. I have considered these matters. I have given particular weight to the view of the parties, including the fact that Mr Offord initiated the request for transfer, that he has accepted the application of the Transferrable Instrument as a condition of his transfer and that neither of the two unions covered by the Transferrable Instrument have opposed the application. I also find it significant that Mr Offord is aware that some of the terms and conditions of the Riverside Agreement are less beneficial than those contained in the Transferrable Instrument and that he has accepted application of the Riverside Agreement as a condition of his transfer regardless.

[8] In the absence of evidence to the contrary, I accept the submissions of the Applicant that there is no business synergy between the Transferrable Instrument and the Riverside Agreement, that the application of the Transferrable Instrument may create administrative difficulties for the new employer and that it may also create division amongst the Riverside workforce. There is no evidence before me that any employee would be disadvantaged by the Order.

[9] I do not consider that the granting of an Order in the terms sought is contrary to the public interest.

Conclusion

[10] For the reasons above, I find that Mr Offord should not be covered by the Transferrable Instrument and that he should be covered by the Riverside Agreement upon the commencement of his employment at Riverside. I will issue an Order to this effect.

VICE PRESIDENT WATSON

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