sia Abrasives Australia Pty Ltd

[2018] FWC 7119

[2018] FWC 7119

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

sia Abrasives Australia Pty Ltd

(AG2018/6081)

Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement

Manufacturing and associated industries
Commissioner McKinnon	MELBOURNE, 20 NOVEMBER 2018

Application that transferable instrument not cover transferring employee.

Introduction

1. sia Abrasives Australia Pty Ltd (sia Abrasives) has applied for an order under section 318 of the Fair Work Act 2009 (the Act) dealing with instruments covering a new employer and transferring employees in the context of a transfer of business.

1. The application concerns Key Account Manager, Mr John Needham, who transferred or will transfer to sia Abrasives from Robert Bosch (Australia) Pty Ltd (RBAU) and who is currently covered by the Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement (the Agreement).

1. The transferring employee has been offered the position of Queensland Account Manager, conditional on the grant of this application.

The relevant legislation

1. Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of certain enterprise agreements, modern awards and other instruments from one employer to another in a transfer of business.

1. Section 311(1) defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer. Sections 317 and 318 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the transferring employee.

1. In deciding whether to make orders of this kind, the Commission must take into account a range of factors set out in section 318(3).

Consideration

1. The Agreement is an enterprise agreement approved by the Commission on 4 April 2016. It is a transferable instrument for the purposes of section 312(1)(a).

1. I am satisfied that Sia Abrasives, who will be the new employer of the transferring employee if the application is granted, will be covered by the Agreement in relation to the transferring employee under section 313 if no contrary order is made.

1. In relation to the transferring employee, I am satisfied that in each case:

(i)His employment with RBAU will terminate upon the acceptance of the offer of employment from sia Abrasives;

(ii)He will be employed by sia Abrasives within 3 months of termination;

(iii)His work for sia Abrasives will be the same, or substantially the same, as the work he performs for RBAU; and

(iv)there is a connection between sia Abrasives and RBAU in that sia Abrasives is an associated entity of RBAU.

1. Accordingly, he is a transferring employee in relation to a transfer of business for the purposes of section 311(2).

The views of the new employer and employees affected by the order

1. Self-evidently, sia Abrasives supports the application being granted. Mr Needham has filed a statutory declaration in support of the application and notes that the position with Sia Abrasives will support his career progression.

1. The Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, the National Union of Workers and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are each covered by the Agreement. None of the unions have chosen to express a view in relation to the application.

Whether any employees would be disadvantaged by the order

1. The material before me suggests that if the order is granted, the transferring employee will be employed on comparable terms and conditions of employment to those in the Agreement although it must be accepted that those terms and conditions will be different, and in some respects, less beneficial. On the other hand, the transferring employee will benefit in terms of career progression, an increased base salary and superannuation contributions and private health insurance cover.

The nominal expiry date of the agreement

1. The nominal expiry date of the Agreement is 31 December 2018, which is now only a matter of weeks away.

Whether the transferable instrument would have a negative impact on productivity at Sia Abrasives

1. There is no evidence to suggest that the application of the Agreement will cause any economic disadvantage to sia Abrasives.

Whether Sia Abrasives would incur significant economic disadvantage by coverage of the Agreement

1. sia Abrasives does not submit that it will incur any significant economic disadvantage as a result of the Agreement covering, or ceasing to cover it, in relation to the transferring employee.

Degree of business synergy between the Agreement and other workplace instruments

1. The Agreement was negotiated for RBAU, a large organisation with a diverse range of business areas. In contrast, sia Abrasives is small business with no enterprise agreement and one which relies upon the applicable awards and employment contracts.

1. It is apparent that there is limited business synergy between the Agreement and the transferring employee’s contract of employment. It is not apparent that any modern award covers or applies to the transferring employee in relation to his employment.

The public interest

1. sia Abrasives submits that it is in the public interest for employees to have the opportunity to transfer employment between related corporate entities for the purposes of promotion and that it is in the public interest to treat the application consistently with previous orders of the same nature issued by the Commission.

1. I accept that consistency of Commission decisions is in the public interest. I have no basis to consider that granting the application would be contrary to the public interest.

Conclusion

1. Having regard to each of the factors set out above, on balance I am satisfied that it is appropriate to make an order in the terms sought.

1. An order [PR702486] will be issued separately to this decision.

COMMISSIONER

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<AE418451  PR702485>