Spicers Australia Pty Ltd T/A Spicers
[2021] FWC 548
•5 FEBRUARY 2021
| [2021] FWC 548 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Spicers Australia Pty Ltd T/A Spicers
(AG2020/2677)
Manufacturing and associated industries | |
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 5 FEBRUARY 2021 |
Application for an order relating to instruments covering new employer and transferring employees. – NSW Storeworker.
[1] This matter involves an application by Spicers Australia Pty Ltd T/A Spicers Australia (Spicers Australia or the Applicant) under section 318 of the Fair Work Act 2009 (the Act). The application seeks an order from the Fair Work Commission (the Commission) relating to a non-management New South Wales (NSW) based Storeworker who was an employee of Wilmaridge Pty Ltd as Trustee for the O’Neill Family Trust trading as Direct Paper Supplies (Direct Paper), identified as employee number 42 in Attachment 2 to the application (the Transferring Employee).
[2] Spicers Australia is seeking an order that the Direct Paper Supplies Enterprise Agreement 2010 1(the Direct Paper Agreement or the transferable instrument) does not cover Spicers Australia and the Transferring Employee, and that the Spicers Australia Pty Ltd (New South Wales) and NUW Enterprise Agreement 20192 (Spicers Agreement) will cover Spicers Australia and the Transferring Employee.
[3] The application contained detailed grounds and submissions and documents in support of the application, including a wages and classification table, comparison of terms and copy of the proposal letter sent to the Transferring Employee.
[4] In its submissions Spicer Australia contends that the Transferring Employee was employed by Direct Paper under the terms of the Direct Paper Agreement, which reached its nominal expiry date on 21 January 2015. On 1 March 2020, Spicers Australia acquired Direct Paper, which was considered a transfer of business in accordance with section 311(1)(a)–(d) and section 311(3) (a) – (d) of the Act. The Transferring Employee commenced employment with Spicers Australia on 1 March 2020.
[5] Spicers Australia submits the Direct Paper Agreement is a transferable agreement pursuant to s.312(1)(a) of the Act, and pursuant to s.313(1) of the Act the Transferring Employee from Direct Paper is still covered by that Agreement.
[6] Effective 3 September 2020 the Transferring Employee commenced working from the Spicers Australia Chullora worksite. An existing warehousing and distribution teams is employed at that site and is covered by the Spicers Agreement, which has a nominal expiry date of 1 July 2022.
[7] Spicers Australia wish to align employment conditions both from a practical operational perspective as well as to ensure unity and harmony in working conditions and relationships between these teams.
[8] The Spicers Agreement contains employment terms and conditions that are far more beneficial to the Transferring Employee than the Direct Paper Agreement, and the Transferring Employee will not be disadvantaged by the order sought.
[9] Spicers Australia consulted with the Transferring Employee in regard to their proposal to have them covered by the Spicers Agreement, and the Transferring Employee has agreed to the order sought.
[10] Spicers Australia wants to ensure that a ‘two-tier’ workforce does not exist in NSW which would disadvantage the Transferring Employee, when compared to all other current or future Storeworkers employed in Chullora, through continued coverage under the Direct Paper Agreement; such disharmony within the team is counter-productive to the business and the Transferring Employee achieving required outcomes.
[11] Spicers Australia submits continuing the current arrangement poses additional operational burden on Spicers Australia, as there are additional administrative requirements associated with enforcing two Agreements which contain different conditions, and the productivity of the combined NSW Storeworker team and all management and HR functions that support the monitoring and administration of employment conditions for this team will be enhanced through the application of the Spicers Agreement to the Transferring Employee.
[12] While the Direct Paper Agreement is more economically advantageous to Spicers Australia submits, they have budgeted for the additional financial impact associated with providing the Transferring Employee with more favourable employment conditions under the Spicers Agreement.
[13] Spicers Australia further submits the nature of work and hours performed by the Transferring Employee under the Direct Paper Agreement is compatible with the conditions of the Spicers Agreement, and the coverage clause covers the Transferring Employee.
[14] Directions were issued on 8 October 2020 and the matter listed for Hearing on 20 November 2020. No response in opposition to the Application was received by the Commission.
[15] Section 318 of the Act sets out the circumstances in which an order such as that sought by Spicers may be made by the Commission:
“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.”
[16] I have 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. I am satisfied that by virtue of the operation of the Act, if the orders sought were not made, the Transferring Employee would continue to be covered by the Direct Paper Agreement.
[17] Having examined and considered the application and the accompanying materials, and the submissions made at the hearing, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318(3) of the Act and am satisfied that it is appropriate to make the orders sought under s.318(1) and (b) of the FW Act.
[18] In accordance with section 318(4) of the FW Act, the order 3 shall have effect from the time when the Transferring Employee becomes employed by Spicers Australia or the date of the order, whichever is the later.
COMMISSIONER
Appearances:
K Woodman with D Martin and D O’Neill from the Applicant
Hearing details:
2020.
Melbourne (by video link via Microsoft Teams):
November 20.
Printed by authority of the Commonwealth Government Printer
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