Quarry Solutions Pty Ltd

[2018] FWC 1590

[2018] FWC 1590

FAIR WORK COMMISSION

DECISION

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

Quarry Solutions Pty Ltd
(AG2018/898)

DEPUTY PRESIDENT DEAN SYDNEY, 22 MARCH 2018

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

[1] On 9 March 2018 Quarry Solutions Pty Ltd (the Applicant) applied for an order pursuant to s.318 of the Fair Work Act 2009 (the Act).

[2] The application was made in the context of a transfer of business between the Applicant and its associated entity, SEE Civil Pty Ltd (SEE Civil). The transfer of business within the meaning of s.311(1) of the Act arose when ten employees who performed quarrying work for SEE Civil accepted offers of employment with the Applicant. In accordance with s.313(1) of the Act, the SEE Civil Pty Ltd Civil Construction Worker Enterprise Agreement 2014-2018 (the Agreement), being a transferable instrument by virtue of s.312(1)(a) of the Act, covers the Applicant (new employer) and the transferring employees.

[3] The Applicant seeks an order under s.318(1)(a) that the Agreement will not cover the Applicant and the following transferring employees from SEE Civil:

1. Jason Garrett

2. Ross Gore

3. Daryl Lanesbury

4. Virginia McMullan

5. Nicholas Keating

6. Ian Pryor

7. Mitchell Reid

8. Christopher Rogers

9. Scott Schalk

10. Brian Wood

[4] Section 318 of the Act provides:

“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] The application is accompanied by copies of the letters of offer signed by each of the affected employees, and an affidavit of Ms Amelia Quinlan, Human Resources Manager of the Applicant.

[6] Ms Quinlan’s evidence, which was not contested, dealt with each of the matters that the Commission must take into account in s.318(3). Further, she said that the offer accepted by the employees was conditional upon an order made by the Commission that the Agreement does not apply to them. If the order were granted, the transferring employees would be covered by Quarry Solutions Pty Ltd Enterprise Agreement 2017 (Quarry Solutions EA). Ms Quinlan said this would result in the transferring employees receiving a higher rate of pay.

[7] It was submitted that the granting of the order would have a positive impact and provide consistency as the majority of the Applicant’s employees are already covered by the Quarry Solutions EA.

[8] The Applicant was directed to provide to all affected employees a copy of the Directions issued by the Commission which required a response by 19 March 2018 if they wished to oppose the application. No opposition to the application was received from or on behalf of the employees.

[9] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 of the Act have been met and an Order in the terms sought should be made.

[10] An Order will issue with this decision.

DEPUTY PRESIDENT

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