Stronach Labour Force Pty Ltd
[2011] FWA 8039
•25 NOVEMBER 2011
[2011] FWA 8039 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Stronach Labour Force Pty Ltd
(AG2011/9504)
Timber and paper products industry | |
DEPUTY PRESIDENT LEARY | HOBART, 25 NOVEMBER 2011 |
Application for an order relating to instruments covering new employer and transferring employees in agreements
[1] This is an application made pursuant to s.318 of the Fair Work At 2009 (the Act) by Stronach Labour Force Pty Ltd.
[2] The application seeks, that pursuant to s.318(1) of the Act that the “Gunns Scottsdale Collective Workplace Agreement 2010 does not, or will not, cover Stronach Labour Force Pty Ltd or Stronach Timber Industries or the nominated transferring employees of Stronach Labour Force Pty Ltd (the new employer) who were formally engaged by Gunns Limited.”
[3] The ‘transferring employees’ are listed below:
Alfred Beck Phillip Farrell
Brett Singline Phillip Morey
Chris Campbell Rebecca Tompsett
Corrie Shipton Richard Brown
Craig Wadley Robert Burr
Drew Hall Robert Thompson
Ian Bowen Shannon Brown
James Turner Stuart Morey
Jamie Targett Terry Thow
John Dennis Tommy Hughes
John Newman Tony Blackberry
Johnathon Young Travis Knight
Justin Nichols Trent Shipton
Marilyn Hayes Trevor Krushka
Mark Beswick Wayne Johnson
Mark Richards Will Tompsett
Peter Sleep Zanette Young-Riley
Phillip Burrows
[4] The application also seeks that the order will come into operation in relation to the ‘transferring employees’ at:
(a) “The time when the ‘transferring employees’ became employed by the new employer (Stronach Labour Force Pty Ltd); or
(b) The date on which this order is made, whichever is the latest date.”
BACKGROUND
[5] The ‘transferring employees’ were made redundant by Gunns Limited and were paid full leave and redundancy entitlements. Prior to engagement with Stronach Labour Force Pty Ltd the ‘transferring employees’ were made offers of employment by Stronach Labour Force Pty Ltd and were advised that conditions of employment would be based on the Stronach Labour Force Pty Ltd Employee Collective Agreement 2009 (SLF Agreement). A copy of that agreement was provided to each employee.
[6] Discussions were held with the ‘transferring employees’ regarding this application, options
available about wages and conditions and the work to be performed.
[7] A secret ballot of the ‘transferring employees’ unanimously determined that they supported the “removal of the Gunns Scottsdale Collective Workplace Agreement 2010.”
[8] The Construction, Forestry, Mining and Energy Union (CFMEU) was not satisfied with the ballot process so a second secret ballot was held resulting in “a significant majority of the ‘transferring employees’ support to remove the Gunns Scottsdale Collective Workplace Agreement 2010 and to be covered by the Stronach Labour Force Pty Ltd Employee Collective Agreement 2009.”
[9] The following questions were put to the ‘transferring employees’ in each of the secret
ballots:
(a) “Work under the Stronach Labour Force Pty Ltd Employee Collective Agreement 2009;
(b) Work under Stronach Labour Force Pty Ltd Employee Collective Agreement 2009 until a newly negotiated Stronach Timber Industries agreement is reached;
(c) Work under a modified version of the Gunns Scottsdale Collective Workplace Agreement 2010;
(d) Work under the Gunns Scottsdale Collective Workplace Agreement 2010.”
[10] The application indicates that the result of the ballot was in favour of coverage by the Stronach Labour Force Pty Ltd Employee Collective Agreement 2009. Options (a) and (b) resulted in 22 votes in total, option (3) nil votes and option (4) nil votes.
LEGISLATION
[11] The relevant legislative provisions of the Act are as follows:
“s.311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
s.318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.
[12] Director of the new employer, Stronach Labour Force Pty Ltd, Michael Brill, has provided a sworn statement detailing the process of the second ballot held to determine the view of the employees. He states that of the 22 employees engaged at the time of the ballot none supported continuing to work under the Gunns Scottsdale Collective Workplace Agreement 2010.
[13] Sworn statements have also been provided by two (2) employees which agree with the content of the statement of Mr Brill.
[14] The statements all say that “The ballot was supervised, collected and counted by the CFMEU representatives in the presence of SLF employees. Stronach Labour Force Pty Ltd has retained the original ballot papers.”
[15] The application has been considered ‘on the papers’.
[16] Having considered the requirements of the Act, the submissions and sworn statement of the employer, sworn statements of the employees and the result of the ballot I am satisfied that it is in the public interest and the long term interests of the employees that an order be issued as sought by Stronach Labour Force Pty. Ltd.
[17] The relevant order is attached to this decision.
DEPUTY PRESIDENT
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