Sika Australia Pty Ltd

[2020] FWC 2839

[2020] FWC 2839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Sika Australia Pty Ltd
(AG2020/1494)

Storage services
COMMISSIONER CAMBRIDGE	SYDNEY, 11 JUNE 2020

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

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by Workplace Connect Pty Ltd on behalf of their client, Sika Australia Pty Ltd trading as Sika Australia (Sika or the Applicant). The application has been made in respect of employees of Sika, following the acquisition of Parexgroup (Parexgroup) Pty Ltd on 1 October 2019.

[2] The application was lodged at Sydney on 28 May 2020. The application seeks an Order from the Fair Work Commission (the Commission) relating to former employees of Parexgroup, who are employees of Sika (the Transferring Employees).

[3] The application contains grounds and submissions which, in relevant summary, contend that:

•  The Transferring Employees were employed by Parexgroup under the terms of the Parexgroup Pty Ltd – Wetherill Park Manufacturing Facility – Enterprise Agreement (No. 8) (the Parexgroup Agreement);

•  The Transferring Employees ceased employment with Parexgroup on 31 December 2019 and commenced employment with Sika on 1 January 2020;

•  There is an association between Parexgroup and Sika, and a transfer of business from Parexgroup to Sika in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, occurred when the Transferring Employees commence employment with Sika on 1 January 2020;

•  The Transferring Employees consider that the terms and conditions of employment for them with Sika, as provided pursuant to the Sika Australia Pty Ltd Production and Warehouse Single Enterprise Agreement 2018 (the Sika Agreement), are more beneficial overall than the terms applicable under the Parexgroup Agreement.

[4] The matter was listed for a Hearing in Chambers on 11 June 2020. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“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.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.”

[6] The Commission has reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application, and the accompanying materials including the Statement of Mariam Mishou dated 13 February 2020, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted, and Orders [PR719779] broadly in accordance with the terms sought will be issued accordingly.

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<AE424227  PR719782 >