Telstra Corporation Limited
[2012] FWA 6643
•3 AUGUST 2012
[2012] FWA 6643 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in awards
Telstra Corporation Limited
(C2012/4699)
COMMISSIONER ROE | MELBOURNE, 3 AUGUST 2012 |
Application for an order relating to instruments covering new employer and transferring employees in awards.
[1] On 25 July 2012, Telstra Corporation Limited made application that:
“Pursuant to section 318(1) of the Fair Work Act 2009 (Cth) (Act), that each of the:
(a) Sensis (Clerical and Sales Employees) Award 2000;
(b) Sensis Pty Ltd Employment Partnership Agreement No.2 2001;
(c) AWA - Claire Hunt; and
(d) AWA - Jennifer Robertson;
(together, the Sensis Instruments)
not cover Telstra Corporation Limited (Telstra) or any employee transferring to Telstra Corporation Limited from Sensis Pty Ltd (Sensis).”
Background
[2] Sensis is a company in which Telstra has a 100% shareholding. In May 2011 a decision was made to integrate the Sensis Digital Media business (SDM) of Sensis into a business unit within Telstra known as the Telstra Advertising Network incorporating the Telstra Classifieds and BigPond Advertising businesses in addition to the former SDM businesses. In November 2011 a decision was made to consolidate Telstra’s media business including the Telstra Advertising Network into a single division known as Telstra Digital Media. It is now Telstra’s objective to link other Sensis business units to the broader Telstra organisation.
“On 5 March 2012, Sensis announced that it was introducing a shared services model for Sensis corporate support teams: HR, Finance, Corporate Affairs, Strategy, Legal and some parts of IT. This new model involves those support functions moving from Sensis to Telstra, with those functions being delivered for the benefit of the Sensis business from within Telstra. Employees within these areas will report to, and be supported by, Telstra staff. The objective of the shared services model is to allow Sensis to access the strength of Telstra's corporate services, improve collaboration and share best practice.
As a result of this change, in late June 2012 Telstra made offers of employment to 88 Sensis employees covered by common law contracts of employment effective 1 July 2012. Telstra wishes to make further offers of employment to the remaining 70 Sensis employees covered by Sensis Instruments (the "Sensis Employees") who currently deliver shared services from within Sensis and employ them under various Telstra industrial instruments. The relevant Telstra instruments are:
(a) the Telstra Enterprise Agreement;
(b) the Telstra Information Technology Two ECA 2009-2012;
(c) the Telstra Professional Services and Support ECA 2009-2012;
(d) the Telstra Finance and Administration Four ECA 2009-2012; and
(e) the Telstra Finance and Administration Six ECA 2009-2012,
(together, the "Telstra Instruments").
Subject to this application, Telstra presently intends to make offers of employment to the Sensis Employees. The Sensis Employees who are offered and accept employment with Telstra will, upon commencement, perform work for Telstra and Sensis which is the same, or substantially the same, as the work they are currently performing as employees of Sensis.”
[3] The matter was listed for hearing on 3 August 2012. Leave was granted for Mr C. O’Grady to appear for Telstra. Mr Benfell appeared for the CPSU. The CPSU did not oppose the Application on the basis that a signed undertaking was produced 1 which strengthened the commitment in respect to “no disadvantage” in respect to the remuneration review which will take place throughout August/September 2012.
[4] Detailed evidence was provided by Ms Kristy Coombes, Human Resources Program Lead for Telstra 2. Her evidence detailed the extensive process undertaken by Telstra to inform and consult with affected employees about the proposed transfer and the conditions which would apply. Further her evidence included that the affected employees had the opportunity to participate in an online survey and attend briefings. 90% of those who participated did not oppose the transfer.
[5] The evidence of Ms Coombes also included detailed information which satisfied me that overall employees will not be disadvantaged and will in most cases be better off as a result of the transfer.
The legislation
[6] Section 318 of the Fair Work Act 2009 provides that:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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.
Whomay apply for an order?
(2) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.”
Findings in respect of the employees covered by the Sensis (Clerical and Sales Employees) Award 2000 and/or the Sensis Pty Ltd Employment Partnership Agreement No 2 2001.
[7] The applicant is the new employer and is able to make the application.
[8] The transferring employees and their union, the CPSU, who would, but for this application, be covered by the Sensis (Clerical and Sales Employees) Award 2000 (AP821845) and/or the Sensis Pty Ltd Employment Partnership Agreement No 2 2001 (AG836027) and/or the AWA’s have not opposed the making of this order and the evidence of Ms Coombes supports this contention.
[9] The views of the new employer, Telstra, is that the application of the Telstra instruments will encourage a single and harmonious workplace culture, promote consistency and certainty in employment terms and conditions, and positively impact productivity and efficiency in the workplace.
[10] I am satisfied that the affected employees will not be disadvantaged by the order sought in relation to their terms and conditions of employment.
[11] The Sensis (Clerical and Sales Employees) Award 2000 commenced operations in February 2003 and remains in operation as an enterprise award pursuant to the provisions of the Act. The Sensis Pty Ltd Employment Partnership Agreement No 2 2001 has a nominal expiry date of 4 May 2003. The Telstra instruments by contrast are recently agreed instruments.
[12] Telstra gave evidence that the transferable instruments would have a negative impact on the productivity of Telstra. This is primarily because of the effect on the integration of the transferring employees with the other employees in Telstra and the administrative costs of managing different policies and procedures.
[13] Telstra gave evidence that it would incur additional costs due to running two contrasting sets of payroll and other systems or due to re-configuring its current system to deal with the Sensis Instruments. I accept that there would be some costs associated with this.
[14] Telstra submitted that there is a lack of business synergy between the Sensis Instruments and the Telstra instruments.
[15] No submissions were made that the making of the orders is contrary to the public interest.
Conclusion
[16] I have taken into account the submissions and evidence and have had regard to the criteria in section 318. I am satisfied that the making of the order sought is in the public interest and that employees will not be disadvantaged by the making of the order sought and that the employees have been consulted and support the making of the order. I have taken into account the nominal expiry dates of the relevant instruments, the views of the employer, the likely effect on the business of the employer and the degree of business synergy between the Sensis instruments and the Telstra instruments. The granting of the application does not offend the objectives of the transfer of business provisions of the Act and strikes a balance between the protection of employee’s terms and conditions of employment and the business interests of the employer.
[17] I will make the following orders pursuant to Section 318(1) of the Fair Work Act 2009 in respect to the employees of Sensis Pty Ltd who have been engaged in the Sensis corporate support teams who are transferring to Telstra Corporation Limited (Telstra):
1. That each of the:
(a) Sensis (Clerical and Sales Employees) Award 2000;
(b) Sensis Pty Ltd Employment Partnership Agreement No.2 2001;
(c) AWA - Claire Hunt; and
(d) AWA - Jennifer Robertson;
(together, the Sensis Instruments)
not cover Telstra Corporation Limited (Telstra) or any employee transferring to Telstra Corporation Limited from Sensis Pty Ltd (Sensis).”
2. The order shall have effect in respect of each transferring employee from 3 August 2012 or the date when the transferring employee becomes an employee of Telstra whichever is the later.
COMMISSIONER
Appearances:
Mr C O’Grady appeared for Telstra.
Mr L Benfell appeared for the CPSU.
Hearing details:
2012
Melbourne
August 3
1 Exhibit Telstra 1.
2 Exhibits Telstra 2 and Telstra 3.
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