Svitzer Australia Pty Ltd

[2015] FWC 5995

[2015] FWC 5995

FAIR WORK COMMISSION

DECISION

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

Svitzer Australia Pty Ltd
(AG2015/4785)

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 7 SEPTEMBER 2015

Application for Orders relating to instruments covering new employer and transferring employees.

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by Svitzer Australia Pty Limited (Svitzer), in respect of its decision to enter into service level agreements with Smit Lamnalco Towage (Australia) Pty Limited (Smit)for the provision of towage services in Melbourne, Sydney and Newcastle from Tuesday, 1 September 2015.

[2] The application was lodged at Sydney on 28 August 2015. The application seeks an Order from the Fair Work Commission (the Commission) relating to employees of Smitwho are prospective employees of Svitzer (the Transferring Employees).

[3] The application contains grounds and submissions which, in relevant summary, contend that:

• The Transferring Employees are or were employed by Smit under the terms of the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage Enterprise Agreement 2014; the Smit Lamnalco Towage (Australia) Pty Ltd & Australian Maritime Officers Union Enterprise Agreement 2014 and the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2014 (the Smit Agreements);



• From or shortly following 1 September 2015, Svitzer will be the employing entity of the Transferring Employees;

• There is an association between Svitzer and Smit, and a transfer of business from Smit to Svitzer in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur if and when the Transferring Employees commence employment with Svitzer as is anticipated;

• The Transferring Employees consider that the terms and conditions of employment for them with Svitzer, as provided pursuant to the Svitzer Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013; the Svitzer Australia Pty Limited and MUA Towage Enterprise Agreement 2013 and the Svitzer Australia Pty Limited and AMOU Towage Enterprise Agreement 2013 (the Svitzer Agreements), are more beneficial overall than the terms applicable under the Smit Agreements; and



• In the absence of the Order sought by the application, the Smit Agreements would be likely to cover the Transferring Employees and bind Svitzer as a new employer.

[4] The matter was listed for a Hearing in Chambers on 7 September 2015. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“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.”

[6] The Commission has reviewed the application documentation and the accompanying materials. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application and its accompanying materials, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted and Orders [PR571371] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

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<Price code A, AE413369  PR571370 >