Sydney Trains

[2012] FWC 3544

[2012] FWC 3544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 768BA - Application for an order about coverage for transferring employees under a copied State instrument

Sydney Trains

(AG2020/1613)

Deputy President Bull SYDNEY, 7 juLY 2020

Application for an order about coverage for transferring employees under a copied State instrument – Application for orders that the Sydney Trains Enterprise Agreement 2018 cover employees currently covered by the Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2019 who are transferring to Sydney Trains from Transport for NSW – Fair Work Act 2009 (Cth) s.768BA – application granted – orders issued.

Background

1. This decision concerns an application made pursuant to s.768BA of the Fair Work Act 2009 (FW Act) by Sydney Trains. The application relates to the transfer of three employees (the transferring employees) from the Transport Service of NSW (Transport for NSW) to Sydney Trains.

1. The orders sought by Sydney Trains are as follows:

· An order pursuant to s.768BA(1)(a) of the Act that the Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2019 (the Award) will not apply to three Award-covered employees on transfer to Sydney Trains as a transferrable instrument.

· An order pursuant to s.768BA(1)(b) of the Act that the Sydney Train Enterprise Agreement 2018[1] (the Agreement) will apply to three Award-covered employees upon their commencement of employment with Sydney Trains.

1. Sydney Trains submits that the application has been made on the basis that Sydney Trains and Transport for NSW have determined that it is more appropriate for the Waratah Contract Management Team to form part of Sydney Trains’ organisational structure rather than Transport for NSW.

Legislation

1. The relevant legislative provisions of the FW Act are as follows:

“768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re-employment time covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to be a transferring employee;

(ii) the new employer or a person who is likely to be the new employer;

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(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 a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the copied State 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 copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

(g) the public interest.”

Consideration

1. I am satisfied that the application has been validly made by Sydney Trains as the likely new employer as provided for under s.768BA(2)(b)(ii).

1. With regard to the views of the transferring employees, Sydney Trains annexed to the application copies of a letter it sent to each of the transferring employees on 3 June 2020 outlining the way in which the transfers would take place and the proposed application to the Fair Work Commission (the Commission), and advising as follows:

“A consideration that the Fair Work Commission (FWC) takes into account when determining whether to order in favour of the application is the views of employees that are to be covered by the proposed transfer.

As such, if you support the application please indicate this in the below section and return a signed copy of this letter by email to [email protected] by no later than Wednesday 10 June 2020.

Providing support for the outcome sought in the application is optional. It should be noted that where an employee elects to indicate such support it may be submitted to the FWC as supporting evidence to the application.”

1. The letter referred to a consultation meeting held with the transferring employees on the same day.

1. Each of the transferring employees subsequently gave their consent to the application.

1. In addition, the transferring employees were also notified of this application by the Commission and invited to advise my chambers if they wished to be heard. No employee response was received to this invitation.

1. It is submitted by Sydney Trains that coverage under the Agreement will provide the following benefits:

· an increase in salary where appointed to the next highest increment of the comparable grade under the Agreement which is applicable to two of the three employees.

· one employee whose salary is above the maximum Agreement rate for the comparable grade will retain a personal salary that would be subject to any future Agreement increases.

· provision of an employee travel pass which provides for free travel on public transport, including privately operated buses.

· continuity of all accrued annual, extended and sick leave

1. It is submitted by Sydney Trains that it would have great difficulty in administering differing conditions to three employees out of a workforce of thousands covered by the Agreement. Pay and attendance are managed through IT systems that reflect the Agreement conditions. These would be unusable for the transferring employees should they remain covered by Transport for NSW conditions. Changes to these systems would be a considerable expense and add unnecessary complexity to the management of staff.

1. I am satisfied that the transferring employees will not overall, be disadvantaged by an order that their employment be covered by the Agreement. I am further satisfied that if the proposed orders are not made this would have a negative impact on productivity.

1. There is no apparent business synergy between the Award and the Agreement.

1. The public interest would not appear to be engaged by this application, beyond there being a public interest in statutory authorities being run as efficiently as possible.

Conclusion

1. Taking into account all the relevant factors as per s.768BA(3) of the FW Act, I am satisfied that it would be appropriate to make the orders sought.

1. The orders will be issued concurrently with this decision, to the following effect:

· the Transport for NSW and Sydney Metro Salaries and Conditions of Employment Award 2019 will not apply to the transferring employees on transfer to Sydney Trains as a transferrable instrument.

· the Sydney Train Enterprise Agreement 2018 will apply to the transferring employees on commencement of employment with Sydney Trains.

1. Sydney Trains has advised that following consultation with affected employees, final approvals are being sought to transfer the employees from Transport for NSW to Sydney Trains in accordance with s.64 of the Government Sector Employment Act 2013 (NSW) and that this is likely to occur in mid/late July 2020.

1. Pursuant to s.768BA(4), an order under s.768BA(1) must not come into operation in relation to a particular transfer before the later of the following:

(a) the transferring employee's re-employment time;
(b)  the day on which the order is made.

(My underline)

1. Accordingly, the orders will come into operation upon the transferring employees’ re-employment time with Sydney Trains being a later date than the date of the orders.

DEPUTY PRESIDENT

<PR720780>

[1] AE428119

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