Svitzer Australia Pty Limited

[2018] FWC 1462

[2018] FWC 1462

FAIR WORK COMMISSION

DECISION

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

Svitzer Australia Pty Limited
(AG2018/483)

Maritime industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 13 MARCH 2018

s.318 – Application in relation to an order for transfer of business - Application for order relating to instruments covering new employer and transferring employees.

[1] This decision concerns an application lodged by Svitzer Australia Pty Ltd (the Applicant) for orders under s.318 of the Fair Work Act 2009 (Cth) (the Act) which relates to an instrument covering a new employer and transferring employees in the context of a transfer of business.

[2] The effect of the orders sought by the Applicant is to provide that the Smit Lamnalco Towage (Australia) Pty Limited and Maritime Union of Australia Enterprise Agreement 2017 and the Smit Lamnalco Towage (Australia) Pty Limited and Maritime Union of Australia Enterprise Agreement 2017 (the Smit Agreements) will not apply to employees currently covered by those Agreements and transferring employment to the Applicant, and that instead, the transferring employees would be covered by the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the Svitzer Agreement).

The relevant legislation

[3] Section 318 of the Act sets out the circumstances in which an order 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.

[4] By consent, I listed this Application for a decision on the papers and directed the Applicant to send the listing to all transferring employees who would be affected by this decision. That listing directs any party who opposes the Application for the order sought to advise my chambers of such opposition by COB on 9 March 2018. No such opposition was advised.

[5] I am satisfied that the requirements for the Application have been met and I have considered the matters dealt with in section 318(3) in determining this Application. In particular, I am satisfied that both the new employer and the employees who would be affected by the order support the Application or have no opposition to it.

[6] I have considered the comparison of terms and conditions between the three instruments as indicated in summary documents provided to me with the Application of 22 February 2018. On the basis of that comparison, I am satisfied that the employees would not be disadvantaged by the orders in relation to their terms and conditions of employment.

[7] I note that the Svitzer Agreement has a nominal expiry date of 31 December 2019.

[8] I am satisfied that the proposed order would facilitate the integration of the operations of Svitzer and provide an appropriate balance between the protection of entitlements of employees and operational efficiency – consistent with the objects of the relevant part of the Act contained in section 309.
[9] In view of the comparison material provided by the Applicant, and in the absence of any objection to this Application, I am satisfied that an order should be made that employees transferring from Smit to Svitzer will not be covered by the Smit Agreements and will be covered by the Svitzer Agreement. The order (PR601090) will be issued as sought.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601085 >