Queensland Titles Registry Pty Ltd T/A Titles Queensland

[2021] FWC 5499

[2021] FWC 5499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768AX - Application to vary copied State instruments

Queensland Titles Registry Pty Ltd T/A Titles Queensland
(AG2021/6044)

COMMISSIONER SIMPSON BRISBANE, 3 SEPTEMBER 2021

Application by Queensland Titles Registry Pty Ltd T/A Titles Queensland.

[1] On 6 July 2021 the Queensland Titles Registry Pty Ltd trading as Titles Queensland made an application under s.768AX of the Fair Work Act 2009 to vary the State Government Entities Certified Agreement 2019.

[2] The application included seeking the following orders:

1. That Appendix 1 of the State Government Entities Certified Agreement 2019 be amended to list Queensland Titles Registry Pty Ltd (CAN 648 568 101) as an employing authority to which the Certified Agreement applies.

2. That a new Appendix 24 be included in the State Government Entities Certified Agreement 2019 outlining the nature of the variations to the Certified Agreement that are to apply to Queensland Titles, in the terms outlined in Attachment 1 to the application.

[3] The application was supported by a signed statement from Jacqueline Hamilton, Partner at Holding Redlich.

[4] The statement of Jacqueline Hamilton set out the background to the application including that the Queensland Parliament enacted the Queensland Future Fund Act 2020 (Act) (QFF Act) which established the framework for the Queensland Future (Debt Retirement) Fund. Under section 10(1)(a) of the QFF Act, the Treasurer, who is responsible for administering the Debt Retirement Fund, is empowered to direct certain investments be contributed to the Debt Retirement Fund.

[5] All of the functions, powers, assets, liabilities, contracts and employees of the Queensland Titles Registry (Titles Registry), which formerly operated as part of the State of Queensland, through the Department of Resources (the Department), transferred to Titles Queensland on 18 June 2021 (Transfer Date) and have been contributed to the Debt Retirement Fund.

[6] The transfer and conferral of rights was enabled and implemented through a combination of new enabling legislation (the Queensland Future Fund (Titles Registry) Act 2021 (Qld)) (the Act), the delegation of statutory functions and powers to Titles Queensland and private treaty.

[7] As such, from the Transfer Date:

(a) Titles Registry has been operated by Titles Queensland; and

(b) Titles Registry employees have transferred to Titles Queensland.

[8] For the 125 employees who have transferred from the Department to Titles Queensland, their transfers have been effected through legislation, and the application is made in respect of those 125 employees who are employed under industrial instruments.

[9] The transfer from the Department (old employer) to Titles Queensland (new employer) is a ‘transfer of business’ within the meaning of s 768AD of the FW Act as the statutory criteria are satisfied.

[10] Because the transfer is a transfer of business for the purpose of Chapter 6, Part 6-3 of the FW Act, the industrial instruments that applied to the Transferred Employees prior to transfer during their employment with the Department have automatically transferred with the Transferred Employees as ‘copied State instruments’.

[11] Prior to the Transfer Date, the Transferred Employees were employed by the Department under the Queensland Public Service Officers and other Employees Award – State 2015 (Award) and the State Government Entities Certified Agreement 2019. As such:

(a) the Award is a copied State award that came into operation immediately after the Transferred Employees’ employment with the Department was terminated and it will continue to operate for a minimum of five years unless a new Federal enterprise agreement covering the Transferred Employees is made; and

(b) the Certified Agreement is a copied State employment agreement that came into operation immediately after the Transferred Employees’ employment with the Department was terminated and will continue until 23 August 2023 (being the nominal expiry date) or a new Federal enterprise agreement covering the Transferred Employees is made.

[12] A Deed of Arrangement was entered into between Titles Queensland and Together Queensland, Industrial Union of Employees (TQ) to formalise the Industrial Relations Proposal that was agreed to in consultation in relation to the transfer of business.

[13] In a separate decision I have decided to make consolidation orders that the copied State instruments are copied State instruments for non-transferring employees exercising power under s.768BG.

[14] Proposed variations to the Copied Certified Agreement were set out in an attachment to the application. The copied Certified Agreement is to be read in conjunction with the copied Award.

[15] Section 768AX(1) provides the Commission may vary a copied State Instrument for a transferring employee in circumstances including, to remove an ambiguity or uncertainty in the instrument, or to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

[16] On the basis of the statement of Jacqueline Hamilton filed with the application and the other supporting documentation I am satisfied that the criteria in Section 768AX(1) apply in this case.

[17] I am required to take into account the prescribed matters in s.768AX(3) in deciding whether to grant the variations sought. I am also satisfied on the basis of the statement of Jacqueline Hamilton filed with the application and the other supporting documentation, taking into account the prescribed matters it is appropriate to grant the proposed variations from the transfer date of 18 June 2021. Orders will be issued separately and concurrently with this decision.

COMMISSIONER

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