Rookwood General Cemeteries Reserve Trust

[2013] FWC 3639

[2013] FWC 3639

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

Rookwood General Cemeteries Reserve Trust
(AG2013/1316)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 JUNE 2013

Application in relation to order for transfer of business.

[1] This decision concerns an application made by Rookwood General Cemeteries Reserve Trust (the Applicant) for an Order under s.318 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.

Background

[2] The Applicant seeks an Order that a new agreement, the Rookwood General Cemeteries Reserve Trust Enterprise Agreement 2013 [AE401958] (PR538133) (the New Agreement) cover the Applicant and the transferring employees currently employed under the following current agreements:

• Anglican Cemetery Trust Necropolis Employee Collective Agreement 2010 [AE882824]



• Jewish Cemetery Trust Necropolis Enterprise Agreement 2010 [AE881973]



• Rookwood Independent Cemetery Enterprise Agreement 2011 [AE886913]

[3] The Applicant also submitted for approval the New Agreement. It was decided (with the Applicant’s consent,) that both matters would be dealt with at the same time.

[4] The matters were listed together for hearing before me on 12 June 2013 in Sydney.

[5] The Funeral and Allied Industries Union of New South Wales (the Union) had lodged an employee organisation declaration in relation to an application for approval of an enterprise agreement form (F18) as a bargaining representative for the New Agreement.

[6] As well, four employees lodged instruments of appointment as bargaining representatives.

[7] On 3 June 2013 I issued directions that the Applicant provide copies of the applications and the notice of listing to the employee bargaining representatives and display them on a generally used notice board in the place of employment. The Applicant was also directed to file and serve the material it sought to rely on in support of its application pursuant to s.318 by close of business, Friday 7 June 2013.

[8] In an accompanying decision [2013] FWCA 4052 (PR538133) I have approved the New Agreement, operative from 19 June 2013.

The Relevant Legislation

[9] Sections 317 and 318 of the Act relevantly provide:

“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.”

Why the s.318 Order should be made

[10] In April 2012 the following reserve trusts were dissolved pursuant to s.92(3) of the Crown Lands Act 1989 (NSW):

• Anglican Cemetery Trust, Necropolis



• Rookwood Independent Cemetery Trust, Necropolis



• Jewish Cemetery Trust, Necropolis



• Muslim Cemetery Trust, Necropolis

[11] A new trustee, the Rookwood General Cemeteries Reserve Trust was appointed, taking all property, arrangements and liabilities of the four previous trusts, including their employees. The applicable enterprise agreements listed in paragraph [2] above applied to the relevant employees of the above trusts. Staff previously employed by the Muslim Cemetery Trust also transferred, although they were employed under the Cemetery Industry Award 2010 (insert award code).

[12] The new trust was faced with the situation of four sets of wages and conditions applying to its 68 employees. It is relevant to note that the nominal expiry dates of the old agreements are as follows:

Jewish Cemetery Trust Necropolis Employee Collective Agreement2010- (10.11.13)

Rookwood Independent Cemetery Enterprise Agreement2011 - (26.7.14)

Anglican Cemetery Trust Necropolis Enterprise Agreement2010 - (14.12.13)

[13] Understandably, the Applicant negotiated with the Union and bargaining representatives a new agreement so that there would be one set of wages and conditions covering its employees. The New Agreement was approved by employees in a vote on 7 May 2013.

[14] In deciding whether to make the order pursuant to s.318 the Fair Work Commission must take into account all of those matters set out in subsection 318(3) above.

[15] The Applicant filed on 6 June 2013 its written response to the directions referred to above. It dealt in detail with each matter set out in subsection 318(3). Their representative, Mr Forster from the Australian Federation of Employers and Industries expanded on these points at the hearing. Mr Nye, on behalf of the Union concurred.

[16] The main points made by both parties in support of the application are:

• A common set of wages and conditions for the new trust is essential to the efficiency of the business and the industrial harmony of the workplace;



• All employees participated in the negotiation of the New Agreement and it was approved on the basis that it would replace their former conditions of employment;



• No employee would be disadvantaged by the making of the New Agreement. This was supported by a detailed wages and allowances translation table.

Conclusion

[17] In view of the documentary material provided by the Applicant and the Union, and their submissions at the 12 June 2013 hearing, I am satisfied that the Order pursuant to s.318 sought should be made. The Order (PR537699) will operate from 19 June 2013.

DEPUTY PRESIDENT

Appearances:

S. Foster of the Australian Federation of Employers for the Applicant.

A. Nye for the Funeral and Allied Industries Union of New South Wales.

Hearing details:

2013

Sydney:

June 12.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537646>