Sunstate Airlines (QLD) Pty Ltd

[2013] FWC 3521

[2013] FWC 3521

FAIR WORK COMMISSION

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
(AG2013/1169)

Airline operations
COMMISSIONER BOOTH	BRISBANE, 11 JUNE 2013

Application in relation to a transfer of business - transferrable instrument - application that transferrable instrument not cover transferring employee – conditional offer of employment – application not opposed - Fair Work Act 2009 ss.311, 317 and 318.

[1] An application by Sunstate Airlines (QLD) Pty Ltd (Sunstate) for an Order under s.318 of the Fair Work Act 2009 (the Act) which relates to an instrument covering the new employer and transferring employee was lodged on 14 May 2013. The application is made in respect of Mr Brendon Marton who is an employee of Qantas Airways Limited (Qantas) and a prospective employee of Sunstate.

[2] Mr Marton is employed by Qantas under the Australian Services Union (Qantas Airways Limited) Agreement 9 1 (the Qantas Agreement). The terms of the Order are sought under s.318(1) and provide that in relation to Mr Marton, where there is a transfer of business from Qantas to Sunstate within the meaning of Division 2, Part 2-8 of the Act, the Qantas Agreement will not cover Sunstate.

[3] For the purpose of s.311(6) of the Act, Sunstate and Qantas are associated entities or have a connection by virtue of their status as related bodies corporate, as that term is defined by s.50 of the Corporations Act 2001.

[4] In the material provided by the Applicant it is submitted that Mr Marton will not be disadvantaged if the order is made, and that the Sunstate Airlines (QLD) Pty Ltd and Australian Services Union Enterprise Agreement 2011 2 (Sunstate Agreement) under which Mr Marton will be employed in the new role with Sunstate will provide him with a higher rate of pay. It is noted that there are some conditions of employment that are less generous than the Qantas Agreement, however, Mr Marton will be provided with full-time employment at Sunstate rather than part-time which is all that is available for him at Qantas.

[5] The Australian Municipal, Administrative, Clerical and Services Union is a party to both the Sunstate and Qantas Agreements. It does not oppose the application.

[6] I have considered the matters set out in s.318(3)(a) to (g) of the Act and I am satisfied on the basis of the submissions and supporting documentation provided with the application that the order should be issued. Consequently the Application is granted and the Order [PR537499] in the terms sought will be issued accordingly.

COMMISSIONER

 1   AE885997

 2   AE893409

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<Price code A, AE885997  PR537498 >