sia Abrasives Australia Pty Ltd T/A Sia Abrasives Australia

[2014] FWC 301

[2014] FWC 301

The attached document replaces the document previously issued with the above code on 10 January 2014.

Typographical error in paragraph [4] has been amended.

Abbygayle Lang

Associate to Deputy President Gostencnik

Dated 28 March 2014.

[2014] FWC 301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transferable instrument

sia Abrasives Australia Pty Ltd T/A Sia Abrasives Australia
(AG2013/12186)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 10 JANUARY 2014

Application relating to instruments covering new employer and transferring employees.

Introduction

[1] Robert Bosch (Australia) Pty Ltd (Bosch) and sia Abrasives Australia Pty Ltd (Applicant) are related entities. Antonio Pino is an employee of Bosch who has applied for and has been offered employment with the Applicant. Mr Pino’s employment with Bosch is covered by the Robert Bosch (Australia) Pty Ltd 2013 Enterprise Agreement (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 Pino because of s. 313 (1)(a) will not cover the applicant and Mr Pino. The application is supported by Mr Pino and is not opposed by relevant organisations covered by the Agreement or having the right to represent the industrial interests of Mr Pino and other employees at the Applicant’s workplace. In the circumstances I have decided to deal with the application on the papers without conducting a hearing.

Background

[2] The Applicant and Bosch are associated entities within the meaning of the Corporations Act 2001 (Cth). Mr Pino is employed by Bosch as a sales representative located in Western Australia. His employment in that position is covered by the Agreement. The Applicant has conducted a recruitment and selection process seeking to fill a technical sales representative position in relation to its operations in Western Australia. Mr Pino applied for appointment to that position. The work that he currently performs in his employment with Bosch is the same or substantially the same as the work that is involved in fulfilling the position with the Applicant for which he applied..

[3] Mr Pino has been successful in the application for employment with the Applicant. On 9 December 2013 the applicant made a conditional offer of employment to Mr Pino. The offer was conditional on the Applicant obtaining an order from the Fair Work Commission that the Agreement not apply to Mr Pino’s employment with the Applicant. Mr Pino accepted the conditional offer. The conditional offer was confirmed 13 December 2013 and it is intended that the Applicant would commence to employ Mr Pino on 13 January 2014.

Consideration

[4] The discretion to make the order sought by the Applicant will only be exercised after taking into account the matters enumerated in s318(3) of the Act.

[5] The views of the Applicant and Mr Pino are clear. Each supports the making of the order, and in particular Mr Pino says that he is keen to obtain employment with the Applicant because it is an opportunity for career progression in a field that is of interest to him 1. Mr Pino accepted an offer of employment that was conditional upon an order being made that the Agreement would not apply. If an order is not made, then Mr Pino will be denied the opportunity to pursue the career progression that he desires. Further, Mr Pino is the only employee that will be affected by the order if it were made. Mr Pino is satisfied with the terms and conditions of employment that are offered by the Applicant despite there being differences between his entitlements under the Agreement and those that have pertained to his employment with the Applicant. Moreover, he is satisfied that employment with the Applicant would result in a higher salary than that pertaining to the current position.

[6] It would appear that no other employee would be disadvantaged by the order in relation to their terms and conditions of employment and although Mr Pino might in some areas of employment conditions become entitled to lesser benefits than those that would apply under the Agreement, I am satisfied that overall the terms and conditions are comparable. I am also satisfied that to the extent that there might be some disadvantage in the terms and conditions of employment with the Applicant when compared to the Agreement, Mr Pino is willing to accept that consequence in order that he can pursue career progression.

[7] As to the matters in s 318 (3) (c) – (f), I consider these to be essentially neutral in this case given the conditional nature of the offer of employment. In the circumstances I also consider that it is not against the public interest for the order sought by the Applicant, which is also supported by Mr Pino and not opposed by the organisations referred to earlier, to be made.

Conclusion

[8] I will make an order that the Agreement will not cover the Applicant and Mr Pino in relation to his employment with the Applicant. The order will come into operation on 13 January 2014, or if Mr Pino commences employment with the Applicant on a later date, on that date.

[9] An order giving effect to this decision has been separately issued in PR546735.

DEPUTY PRESIDENT

 1   Statutory declaration by Mr Pino declared on 17 December 2013 at [5]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546736>