Qube Logistics (Aust) Pty Ltd - [2024] FWC 1276

[2024] FWC 1276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Qube Logistics (Aust) Pty Ltd

(AG2024/146)

DEPUTY PRESIDENT GRAYSON

SYDNEY, 16 MAY 2024

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

Qube Logistics (Aust) Pty Ltd (the Applicant) has made an application under s.318 of the Fair Work Act 2009 (Cth) (the Act). The application seeks orders from the Fair Work Commission (Commission) that:

"A.The Viterra Operations Pty Ltd - Narrabri Agreement 2022 will not cover the Applicant and the EA covered transferring employees;

B.The Qube Logistics Regional NSW Intermodal Terminal Enterprise Agreement 2023 will cover the EA covered transferring employees.”

The Commission directed the Applicant to file submissions and material in support of its application, addressing the relevant provisions of the Act, and directed that it serve the submissions and material and a copy of its application on the employees covered by the Viterra Operations Pty Ltd - Narrabri Agreement 2022 (Viterra EA or Transferable Instrument) who were transferring their employment to the Applicant (the Transferring Employees). The Applicant filed its submissions on 20 February 2024.

On 27 March 2024 and having reviewed the material filed, I issued further Directions requiring the Applicant to file evidence and submissions including further evidence and analysis supporting its submissions already filed and submissions specifically addressing s. 311 of the Act. These Directions were also complied with by the Applicant.

The application, supporting documentation and all materials filed by the Applicant in accordance with the Directions were served on the Transferring Employees. The Transferring Employees did not file any submissions in opposition to the application nor request to be heard in relation to the application. Accordingly, I determined to deal with the matter on the papers and without the need for a hearing.

The Applicant provides logistics services across Australia by rail transport and the operation of intermodal logistics hubs and rail terminals. Employees of the Applicant who are engaged at intermodal logistics hubs and rail terminals are covered by the Qube Logistics Regional Intermodal Terminal Enterprise Agreement 2023 (Qube EA).

Viterra Operations Pty Ltd (ABN 29 106 378 885) (Viterra) owned and operated the Narrabri Agri-Storage and Handling Facility located at 74 Boundary Street, Narrabri, New South Wales. The Narrabri site is an agricultural storage and handling facility that deals with the transport of containerised grain from Northern New South Wales to Port Botany.

The Applicant commenced negotiations to purchase the Narrabri site business from Viterra in or around July 2023. On 28 September 2023, the purchase of the Narrabri site was effected and ten employees of Viterra commenced employment with the Applicant. Across the group of ten employees who accepted the offer of employment with the Applicant, the Viterra Operations Pty Ltd Narrabri Agreement 2022 covered seven employees.

Legislation

Part 2-8 of Chapter 2 of the Act describes when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Qube Logistics (Aust) Pty Ltd [2024] FWC 1276
Case: [2024] FWC 1276
Decision Date: 16 MAY 2024

CaseChat Overview and Summary

Qube Logistics (Aust) Pty Ltd sought orders from the Fair Work Commission to modify the coverage of enterprise agreements following the transfer of business from Viterra Operations Pty Ltd. The transfer involved ten employees, seven of whom were covered by the Viterra Operations Pty Ltd - Narrabri Agreement 2022. The Applicant sought for this agreement to no longer cover the new employer and the transferring employees, and for the Qube Logistics Regional NSW Intermodal Terminal Enterprise Agreement 2023 to cover them instead. The legal issues before the court were whether the transfer of business met the statutory criteria and whether the proposed orders were justified under the Fair Work Act 2009.

The court found that the transfer of business satisfied the requirements of the Act, including the termination of employment, timely re-employment by the new employer, the continuity of work performed, and the connection between the old and new employer through the transfer of assets. The court also considered the views of the parties, the potential disadvantage to employees, the nominal expiry date of the Viterra EA, the impact on workplace productivity, potential economic disadvantage, business synergy, and the public interest. The court concluded that the Transferring Employees would not be disadvantaged by the change in agreements, as the Qube EA offered better overall terms and conditions. The court accepted that having two agreements would negatively impact productivity and incur some economic disadvantage, though not significantly. The court found some business synergy between the agreements and determined that the orders were in the public interest. Based on these findings, the court granted the orders sought by the Applicant.

The final orders were that the Viterra Operations Pty Ltd - Narrabri Agreement 2022 would not cover Qube Logistics (Aust) Pty Ltd or the Transferring Employees, and that the Qube Logistics Regional NSW Intermodal Terminal Enterprise Agreement 2023 would cover the Transferring Employees in relation to their employment with the Applicant. The order came into operation on 16 May 2024.

Orders