RETEX Pavement Services (NSW) Pty Ltd T/A RETEX Pavement Services (NSW)
[2022] FWC 1328
•27 MAY 2022
| [2022] FWC 1328 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
RETEX Pavement Services (NSW) Pty Ltd T/A RETEX Pavement Services (NSW)
(AG2022/1623)
| Building, metal and civil construction industries | |
| COMMISSIONER SPENCER | BRISBANE, 27 MAY 2022 |
Application for an order relating to instruments covering new employer and non-transferring employees.
INTRODUCTION
An application pursuant to s.319 of the Fair Work Act 2009 (the Act) was made by RETEX Pavement Services (NSW) Pty Ltd T/A RETEX Pavement Services (NSW) (the Applicant/RETEX NSW/the New Employer) for an Order under s.319(1)(b), that the Roadline Removal (North Coast) Enterprise Agreement 2019 (the Agreement/the transferable instrument) cover non-transferring employees who perform, or are likely to perform, transferring work for the Applicant.
In accordance with s.319(1)(b) of the Act, the Applicant sought an Order to be made, to permit the transferable instrument to cover any non-transferring employees who perform, or are likely to perform, the transferring work covered by the Agreement.
Section 313(1) provides that a transferrable instrument that covered RETEX Pavement Services (North Coast) Pty Ltd T/A RETEX Pavement Services (RETEX/the Old Employer) and the transferring employees immediately before the termination of the employment will cover the new employer (being the Applicant). The operation of these sections means that the Applicant would be covered by the Agreement in relation to the transferring employees.
The Applicant sought an Order that the Agreement will cover any non-transferring employees of the Applicant who perform, or are likely to perform, the transferring work, pursuant to s.319(1)(b) of the Act.
RELEVANT PROVISIONS
Pursuant to s.319 of the Act:
“319 Orders relating to instruments covering new employer and non-transferring
employeesOrders 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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c)an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(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 non-transferring
employee before the later of the following:(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;
(b) the day on which the order is made.”
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE
Witness Statement of Mr Jason Goff
Mr Jason Goff, director of both the New Employer and the Old Employer, provided a statement in support of the Application.
Mr Goff stated that RETEX NSW is a new entity that is associated with RETEX. Employees from the Old Employer were transferred to the New Employer to complete the same type of work as they were undertaking prior to their transfer. Those employees were covered by the Roadline Removal (North Coast) Enterprise Agreement 2019 (the Agreement) while engaged with the Old Employer.
Mr Goff stated that as a result of the transfer of employees, those employees continue to be covered by the Agreement, as a transferrable instrument.
Mr Goff stated that RETEX NSW intends to hire new employees in the foreseeable future and is making this application to ensure that any new employees are also covered by the Agreement for administrative ease and fairness.
In specifically addressing the criteria in s.319(3) of the Act, Mr Goff stated the following:
s.319(3)(a)(i) – the views of the new employer
Mr Goff stated that where the Agreement applies to the current cohort at RETEX NSW but does not apply to new employees who would otherwise be covered by the Building and Construction General On-Site Award 2020 (the Award), this will create a distinct difference in entitlements between employees working in substantively similar roles. This will inevitably lead to division and conflict where new employees are receiving lesser rates than their co-workers who transferred from their Old Employer.
Mr Goff stated that RETEX NSW's view is that it will ensure consistency, egality and fairness among all employees of RETEX NSW by providing the same entitlements and obligations for all employees working in the same scope.
Further, employees covered by the Agreement will receive above-Award rates that would not otherwise apply to them, which RETEX NSW considers is appropriate and reasonable in the circumstances, as well as beneficial to new employees.
Mr Goff confirmed that RETEX NSW therefore supports the application and the order proposed to be made.
s.319(3)(a)(ii) – the views of the new employees
Mr Goff stated that currently, only transferred employees are engaged with the New Employer. Therefore, he cannot obtain the views of new employees who will be affected by the order sought. However, he considered that a new employee would look favourably upon receiving the higher rates than they would have under the Award.
s.319(3)(b) – whether any employees would be disadvantaged
Mr Goff stated that RETEX NSW does not consider that any employee will be disadvantaged by the order if made.
Mr Goff also stated that current or transferring employees are already covered by the Agreement and are not subject to the order. New employees would be required to adhere to safety requirements and mobile phone restrictions that are not present under the Award, but would receive higher rates to compensate.
Mr Goff noted that it is relevant that the Agreement, by virtue of its approval, has been deemed to position employees as better off overall when compared to the Award. As such, were new employees covered by the Agreement rather than the Award, they would be better off overall.
s.319(3)(c) – the nominal expiry date
Mr Goff did not directly address s.319(3)(c) of the Act in his witness statement, however the Agreement’s nominal expiry date is 25 June 2023.
s.319(3)(d) – negative impact on productivity
Mr Goff stated that RETEX NSW does not consider that the Agreement will have a negative impact on productivity, as it currently applies to RETEX and is largely identical in function to the Award. New employees engaged under these terms would work in the same manner as the currently transferred employees.
s.319(3)(e) – economic disadvantage
Mr Goff stated that despite the higher rates under the Agreement, RETEX NSW will not suffer any economic disadvantage by having new employees covered by the Agreement. Mr Goff confirmed that RETEX NSW has considered its financial position on the basis of having employees engaged exclusively under the Agreement and will not suffer any significant detriment from having employees on above-Award rates.
s.319(3)(f) – degree of business synergy
Mr Goff stated that the Agreement and Award are already in complete synergy, being as though one incorporates the terms of the other.
However, Mr Goff noted that RETEX NSW considers that having all employees doing the same work under a single instrument will promote business synergy better than having employees under either the Agreement or Award.
s.319(3)(g) – public interest
Mr Goff stated that RETEX NSW does not consider that the order sought is against public interest, and in fact considers that the public interest is served by granting it.
Mr Goff also stated that should the order be made, there will be no significant impact on an industry level. The only effect is that employees of RETEX NSW will be covered by the same negotiated agreement. This is the same outcome as if RETEX NSW had been directly involved in the bargaining process.
Further, applying the existing Agreement terms to new employees is also unremarkable, being as though this would have occurred if RETEX NSW had prepared the agreement itself.
Finally, Mr Goff stated that public interest would be served by facilitating an arrangement that permits the maintenance of the presently approved employment conditions under the Agreement across the entire business, to be replaced in due course if a new agreement is made through bargaining in the years to come.
CONCLUSION
I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.
The Order PR742030 will issue with this Decision and take effect in accordance with s.319(4) of the Act.
COMMISSIONER
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<AE504094 PR742069>
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