QT Hotels and Resorts Pty Ltd

[2014] FWC 2252

[2014] FWC 2252

FAIR WORK COMMISSION

DECISION

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

QT Hotels and Resorts Pty Ltd
(AG2014/5068)

DEPUTY PRESIDENT SAMS SYDNEY, 7 APRIL 2014

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

[1] This decision will confirm the orders I made on 2 April 2014. What follows are my reasons for doing so.

[2] This is an application filed by QT Hotels and Resorts Pty Ltd (the ‘applicant’), pursuant to s 318(2)(a) of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’) that the Quay West Resort & Spa Falls Creek Enterprise Agreement 2009 [AE874039] (the ‘Agreement’) will not cover or apply to the employment by the applicant of a transferring employee, Mr Dennis Raymond Neumann. The effect of this order is that Mr Neumann will be covered by the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

[3] The orders are sought in the context of the applicant having acquired the Quay West Resort & Spa Falls Creek (the ‘Resort’) in May 2013. Pursuant to s 313(1) of the Act, Mr Neumann, who is employed as a casual Room Attendant and as the only transferring employee remaining employed by the applicant, is covered by the Agreement, which reached its nominal expiry date on 19 February 2014. All other employees at the Resort are covered by the Award. The applicant seeks to have uniform Award coverage of all its employees, so as to avoid operational inefficiencies. Mr Neumann provided a signed acknowledgement on 23 November 2013 that indicated that he understood that the coverage of his employment would be transferred from the Agreement to the Award and that this would result in no disadvantage to his general entitlements and conditions of employment. He acknowledged that he had been given the opportunity to raise any concerns with the applicant and no concerns had been raised.

[4] 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.

‘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.’

[5] At a hearing of the application on 2 April 2014, Mr S Kennedy, Solicitor appeared with Ms P Dalton for the applicant. Ms Kennedy explained that there was a minor discrepancy between the Agreement and the Award in relation to overtime rates of pay for some shifts. However, there was an agreement between the applicant and Mr Neumann that the rates under the Agreement would continue to apply and, accordingly, there was no disadvantage to Mr Neumann. Ms Dalton noted that Mr Neumann had worked at the Resort for a considerable period of time.

[6] Having considered the material filed by the applicant and the submissions of Mr Kennedy and Ms Dalton, I have no hesitation in confirming the orders sought by the applicant. In doing so, I have taken all of the matters in s 318(3) of the Act into account; in particular, the views of the employee and the employer, the fact that there will be no disadvantage to the employee in relation to his terms and conditions of employment, the fact that the Agreement has expired and the negative effect which the continued coverage of the Agreement would have on business efficiency. For the sake of completeness, I am satisfied that is not against the public interest to make the orders sought. The orders shall be effective from 2 April 2014 and are issued separately to this decision.

DEPUTY PRESIDENT

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