SVG Structures WA Pty Ltd T/A SVG Structures

[2019] FWC 621

[2019] FWC 621

FAIR WORK COMMISSION

DECISION

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

SVG Structures WA Pty Ltd T/A SVG Structures
(AG2019/110)

COMMISSIONER WILLIAMS PERTH, 6 FEBRUARY 2019

Transfer of instrument.

[1] This is an application made pursuant to section 318 of the Fair Work Act 2009 (the Act) by SVG Structures WA Pty Ltd T/A SVG Structures (the new employer). The application seeks orders that a transferrable instrument, the SVG Construction WA Pty Ltd Enterprise Agreement [AE414806] not cover the new employer nor any employees formerly employed by SVG Construction WA Pty Ltd (the Transferring Employees) and that the SVG Structures WA Pty Ltd Enterprise Agreement 2018 [AE429360] cover the Transferring Employees.

[2] Section 318 sets out the circumstances in which such orders may be made by the Commission, as follows:

“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.”

Consideration

[3] Considering that matters prescribed in section 318(3) of the Act that the Commission must take into account and the evidence of Mr Trevor Lawson Youngberg, Financial Controller of the new employer, contained in his affidavit and noting that 50 of the 64 Transferring Employees completed a petition in support of the proposed orders being made I am satisfied the application should be granted.

[4] An Order [PR704510] to that effect will be issued and will operate on and from 6 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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