sia Abrasives Australia Pty Ltd

[2014] FWC 4168

[2014] FWC 4168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

sia Abrasives Australia Pty Ltd
(AG2014/6088)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 JUNE 2014

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

[1] On 23 June 2014 I made an order that the Robert Bosch (Australia) Pty Ltd 2013 Enterprise Agreement (Agreement) not cover Mr Darryn Edwards in his employment with sia Abrasives Australia Pty Ltd. These are my reasons for doing so.

[2] Robert Bosch (Australia) Pty Ltd (Bosch) and sia Abrasives Australia Pty Ltd (Applicant) are related entities. Darryn Edwards (Transferring Employee) is an employee of Bosch who has applied for and has been offered employment with the Applicant. Mr Edwards’ employment with Bosch is covered by the Agreement. The Applicant has applied for an order under section 318 (1) of the Fair Work Act 2009 (Act) that the Agreement, a transferable instrument that would, or would be likely to, cover it and Mr Edwards because of s. 313 (1)(a) will not cover the Applicant and Mr Edwards. The application is supported by Mr Edwards and is not opposed by Professionals Australia and the National Union of Workers, covered by the Agreement or having the right to represent the industrial interests of Mr Edwards and other employees at the Applicant’s workplace. The views of The Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia were sought, however no response to date has been received. In the circumstances I have decided to deal with the application on the papers without conducting a hearing.

[3] The Transferring Employee’s employment with Bosch is covered by the Robert Bosch Australia Pty Ltd 2013 Enterprise Agreement (Agreement). The conditional offer of employment are made on the basis that employment with the Applicant will proceed if the Fair Work Commission (Commission) makes an order that is sought by this application. Pursuant to the conditional offer of employment, the work of the Transferring Employee that will be performed by him with the Applicant is or appears to be the same, or substantially the same as the work that the Transferring Employee are currently performing in their employment with Bosch.

[4] The Applicant has applied for orders under s. 318(1) of the Fair Work Act 2009 (Act) that the Agreement, which is a transferable instrument under the Act, which would or would likely cover the Transferring Employees because of s. 313(1)(a), will not cover the Applicant and the Transferring Employee. The Applicant has standing to make the application because it is likely to be the new employer of the Transferring Employee as is evident in the conditional offers of employment that have been made. If, as is the apparent case, the Transferring Employee ceases employment with Bosch and commences employment with the Applicant immediately thereafter, there will be a transfer of business within the meaning of that term under the Act, because the work to be performed by the Transferring Employee for the Applicant will be substantially the same as the work performed by him for Bosch and there is a connection within the meaning of s. 311(6) between Bosch and the Applicant.

[5] The application that has been made is supported by the affidavit material of Demitra Emmanouil, Human Resource Manager of the Applicant. The application is not opposed by Professionals Australia and the National Union of Workers, both employee organisations that are covered by the Agreement or having capacity under their rules to represent the industrial interests of the Transferring Employees. The fact that the application is not opposed is evidenced by correspondence sent either to my Chambers or to the Applicant’s representative by various emails.

[6] The discretion to make the order sought by the Applicant will only be exercised after taking into account the matters set out in s. 318 (3) of the Act. The views of the Applicant and the Transferring Employee are, in my view, clear. Each supports the making of the order. The Transferring Employee has voluntarily applied for and accepted an offer of employment with the Applicant and considers employment with the Applicant as an opportunity for career progression. As a consequence, a conditional offer of employment has been made to the Transferring Employee. The Transferring Employee is aware of the terms and conditions of the conditional offer of employment and the similarities and differences between the terms and conditions of employment. The conditional offer of employment has been accepted and consequently there is support for the application.

[7] It would appear on the face of the material that the Transferring Employee would not be disadvantaged by any order that is made in relation to their particular terms and conditions of employment. Some of the terms and conditions of employment that are set out in the conditional offer of employment are less favourable to the terms and conditions of employment set out in the Agreement. In some areas, the conditional offer of employment contains terms that are more beneficial when compared to employment under the Agreement.

[8] Consequently, overall I am satisfied that the terms and conditions contained in the conditional offer of employment are comparable to the terms and conditions of employment under the Agreement. The Transferring Employee will not be disadvantaged in hisemployment with the Applicant when the terms and conditions set in the conditional offer of employment are viewed on an overall basis and compared to employment under the Agreement.

[9] Moreover, the Transferring Employee has agreed to accept the terms and conditions set out in the conditional offer of employment that has been made to them by the Applicant.

[10] As to the matters that are set out in paragraphs (c) to (f) of subsection (3) of s. 318, although the Applicant has said that there would be significant financial detriment if the Agreement were to apply, I disagree. I regard the matters set out those paragraphs for the purposes of determining this application as essentially neutral.

[11] I am also satisfied that it is not against the public interest that the order sought by the Applicant, which are supported by the Transferring Employee and not opposed by two of the relevant organisations, to be made. Consequently I will make an order that the Agreement will not cover the Applicant and the Transferring Employee in relation to his employment with the Applicant. The order that I will make will come into operation on the date that that Transferring Employee commences employment with the Applicant.

[12] An order giving effect to this decision has been issued separately on 23 June 2014 in PR552300.

DEPUTY PRESIDENT

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