Sunstate Airlines (QLD) Pty Ltd
[2011] FWA 4905
•28 JULY 2011
[2011] FWA 4905 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Sunstate Airlines (QLD) Pty Ltd
(AG2011/1518)
Airline operations | |
VICE PRESIDENT WATSON | SYDNEY, 28 JULY 2011 |
Application in relation to a transfer of business - transferrable instrument - application that the transferrable instrument not cover transferring employee - Sunstate Airlines (QLD) Pty Ltd - transferring employee Mr Ryan Stewart - Fair Work Act 2009 ss 311, 317 and 318.
Introduction
[1] This decision concerns an application by Sunstate Airlines (QLD) Pty Ltd (Sunstate) for an Order under section 318 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.
[2] Sunstate is a wholly owned subsidiary of Qantas Airlines Limited having been previously acquired by Qantas Airways Limited. It is one of two employing entities, both subsidiaries of Qantas Airways Limited, which operate under the ‘QantasLink’ brand.
[3] The application is in relation to a single employee, Mr Ryan Stewart, who was previously employed by Qantas Airways Limited under a fixed term contract and has now been offered ongoing employment with Sunstate.
[4] The terms of the Order sought under s 318(1) of the Act provide that where there is a transfer of business from Qantas Airways Limited to Sunstate within the meaning of Division 2, Part 2-8 of the Act, then the Australian Services Union (Qantas Airways Limited) Agreement 8 will not cover Sunstate and any transferring employee.
Background
[5] Mr Stewart was employed by Qantas Airways Limited in the role of Advisor, Airport Safety. Mr Stewart was engaged in that role under a fixed term contract which ended on 22 April 2011. During the operation of the fixed term contract he was covered by the Australian Services Union (Qantas Airways Limited) Agreement 8 (the Transferrable Instrument).
[6] Prior to the cessation of his fixed term contract, Mr Stewart applied for the role of Safety Advisor, Maintenance which had been advertised by Sunstate. Mr Stewart was successful in his application and was offered a conditional offer of employment by Sunstate in role of Safety Advisor, Maintenance. The offer contained a condition that Sunstate first obtain from Fair Work Australia an Order that any industrial awards and agreements applying at Mr Stewart’s current employer, Qantas Airways Limited, not apply to his employment at Sunstate following the transfer, or that alternatively, a finding by Fair Work Australia that no such Order is necessary.
[7] Sunstate submits that Mr Stewart supports the application. The Australian Services Union (ASU) is a party to the Transferrable Instrument and was named by the Applicant as an interested party to the application. The ASU has notified Fair Work Australia that it does not wish to make any submissions or appear in relation to the application.
The relevant legislation
[8] Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one employer to another employer.
[9] Sections 317 and 318 of the Act relevantly provide:
“317 FWA may make orders in relation to a transfer of business
This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
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.
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.
Submissions of the Applicant
[10] In relation to the factors set out in s 318(3) of the Act, Sunstate submits that the terms of the offer of employment are better overall when compared to the conditions under which Mr Stewart was engaged by his previous employer. The Applicant submits that there is no operational overlap between Mr Stewart’s previous role at Qantas Airways Ltd and the role at Sunstate and that it is also desirable that there be consistency between the terms and conditions under which all Safety Advisers at Sunstate are engaged.
[11] Sunstate further submits that it is in the public interest for Fair Work Australia to make an Order which facilitates an employee securing ongoing employment in a role that the employee has voluntarily applied for and accepted on terms agreeable to the employee.
Consideration
[12] The circumstances of the proposed transfer, as set out above, appear to constitute a transfer of business as defined by s 311 of the Act. The matters that I am required to take into account when considering whether to grant an Order in the terms sought are prescribed by s 318(3) of the Act, as set out above.
[13] The terms of the Order sought seek to cover any employee transferring to Sunstate in the context of a transfer of business and is not limited to the circumstances of Mr Stewart and his acceptance of conditional employment at Sunstate.
[14] The application does not advance grounds in relation to how an Order of general application to employees transferring to Sunstate in the context of a transfer of business satisfies the factors set out in s 318(3) of the Act. Therefore, I will consider whether the factors are satisfied in relation to the specific circumstances of Mr Stewart as detailed in the application.
[15] I have considered the factors set out in s 318(3). I am of the view that it is appropriate to make an Order in relation to the transfer of Mr Stewart’s employment. I have given weight to the fact that Mr Stewart applied for the new position at Sunstate on his own initiative and on the basis that the advertised terms and conditions of employment were acceptable to him. It is also of significance that Mr Stewart was formerly engaged on a fixed term contract which did not provide for ongoing employment and that the non-coverage of the Transferrable Instrument is a condition of the offer of employment that Mr Stewart has accepted.
Conclusion
[16] For the reasons above, I find that Mr Stewart should not be covered by the Transferrable Instrument upon the commencement of his employment at Sunstate. I will issue an Order to that effect.
VICE PRESIDENT WATSON
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