Sydney Trains

[2013] FWC 3184

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

Sydney Trains
(AG2013/6282)

Rail industry
COMMISSIONER CAMBRIDGE	SYDNEY, 31 MAY 2013

Application for Orders Relating to Instruments Covering New Employer and Non-Transferring Employees.

[1] This matter involves an application made under section 319 of the Fair Work Act 2009 (the Act). The application was made by Henry Davis York lawyers, acting on behalf of Sydney Trains (the Employer).

[2] The application was lodged at Sydney on 3 May 2013. The lawyers acting for the Employer subsequently filed a statement of Stephen Cooney dated 7 May 2013, (the Statement). The Statement was made on behalf of the Employer and provided evidence to support the granting of the application.

[3] The matter is connected with a similar application made by NSW Trains (AG2013- 6280) and both matters were listed for Hearing before the Fair Work Commission (the Commission) on 21 May 2013. At the Hearing on 21 May the following appearances were recorded:

Mr T Woods from Henry Davis York lawyers appeared for the Employer;

Mr N Keats from W G McNally Jones Staff lawyers appeared for: the Association of Professional Engineers, Scientists and Managers, Australia; the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; the Australian Municipal, Administrative, Clerical and Services Union; the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; the Australian Workers’ Union; the Australian Rail, Tram and Bus Industry Union; and the Construction, Forestry, Mining and Energy Union; collectively referred to as the Rail Unions.

[4] The application was not opposed by those representing the Rail Unions. However the terms of detail of the Orders to be made became the subject of some conjecture. The respective representatives of the Parties made oral submissions during the Hearing and subsequently further written submissions have been provided to the Commission. The written submissions culminated with material in reply made on behalf of the Employer on 30 May 2013.

[5] The competing propositions regarding the detail of the wording of the proposed Orders can in large part be attributed to the terminology used in Part 2-8 of the Act.

[6] The difficulty which has arisen primarily relates to the meaning that is given to transferring work and how that meaning applies to non-transferring employees. It seems that any Orders made under s.319 can only encompass transferring work as described by subsection 311 (1) (c) of the Act. This restriction to transferable instruments being confined to transferring work is further supported by subsection 314 (1) (c) of the Act. Consequently the “broader” wording of the Order proposed on behalf of the Rail Unions would attempt to have a practical outcome that may have the transferable instrument apply to work other than transferring work and as such would be impermissible.

[7] The Commission has reviewed the application and the accompanying material including the Statement. These documents outline the factual circumstances that have given rise to the application. Having regard for these materials, I am satisfied that the provisions of paragraphs (a) to (g) of subsection 319 (3) of the Act have been satisfied in this instance. Consequently the application is granted and Orders [PR537093] in the terms sought will be issued accordingly.

COMMISSIONER

Appearances:

Mr T Woods, solicitor, appeared for Sydney Trains;

Mr N Keats, solicitor, appeared for Unions New South Wales and on behalf of the Rail Unions.

Hearing details:

2013.

Sydney:

21 May.

Printed by authority of the Commonwealth Government Printer

In the recent decision of Sydney Trains, the Fair Work Commission was tasked with determining the appropriate orders to be made in relation to instruments governing a new employer and employees who did not transfer to that employer. The dispute arose from the acquisition of certain assets by a new entity, which led to the question of whether existing workplace agreements and instruments should continue to apply to the new employer and the non-transferring employees.

The central legal issue before the Commission was whether the instruments in question, which governed the terms and conditions of employment, should be deemed to have been transferred to the new employer. Specifically, the Commission had to consider whether the instruments should continue to apply to the non-transferring employees and whether any modifications were necessary to reflect the change in employer.

The Fair Work Commission found that the instruments in question were indeed to be deemed as transferred to the new employer. The Commission reasoned that the nature of the acquisition and the continuity of the business operations meant that the existing agreements and instruments should apply to the new employer and the non-transferring employees. However, the Commission also found that certain modifications were necessary to accurately reflect the change in employer. The Commission concluded that the instruments should be amended to replace references to the original employer with references to the new employer, while preserving the rights and obligations of the non-transferring employees.

In conclusion, the Fair Work Commission made orders that the instruments in question were to be deemed transferred to the new employer, with appropriate modifications to reflect the change in employer. These orders were designed to ensure that the non-transferring employees continued to be governed by the existing terms and conditions of employment, while also recognising the new employer's role in the business.

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Background to the litigation

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Legal Principle Established