The University Of Sydney
[2022] FWC 1872
•18 JULY 2022
| [2022] FWC 1872 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
The University Of Sydney
(AG2022/2317)
| COMMISSIONER P RYAN | SYDNEY, 18 JULY 2022 |
Application for orders relating to instruments covering new employer and transferring employees.
Introduction and Background
This decision concerns an application by the University of Sydney (Applicant) for orders pursuant to s.318 of the Fair Work Act 2009 (Act).
The Applicant and the University of New South Wales (UNSW) have entered into an agreement whereby three employees[1] who previously undertook research for the UNSW (Transferring Employees) will transfer to the Applicant and perform research work for the Applicant that is the same, or substantially the same, as the research work they performed for the UNSW.
Furthermore, pursuant to the agreement between the Applicant and the UNSW, the Applicant will have ownership, or the beneficial use of, research samples, licences, and equipment that the UNSW owns, or had the beneficial use of, in undertaking the research.
The Transferring Employees were covered by the University of New South Wales (Academic Staff) Enterprise Agreement 2018 (UNSW Agreement) in relation to their employment with the UNSW.
The Applicant seeks orders that the UNSW Agreement does not cover the Transferring Employees and that the University of Sydney Enterprise Agreement 2018-2021 (USYD Agreement) will cover the Transferring Employees.
Relevant Legislation
Section 313 of the Act relevantly provides:
313 Transferring employees and new employer covered by transferable instrument
(1)If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:
(a)the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and
…
(3)This section has effect subject to any FWC order under subsection 318(1).
Sections 317 and 318 of the Act relevantly provide:
317 FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
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)whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;
(d)whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(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.
Consideration
In deciding whether to make orders pursuant to s.318 (1) of the Act, the Commission must take into account the matters set out in s.318 (3).
Before turning to those matters, I have had regard to all of the materials, and I am satisfied as to the following:
That there has been, or is likely to be, a transfer of business from the UNSW to the Applicant (ss.311 (1) and 317 of the Act);
That the former employees of the UNSW who become employed by the Applicant will be Transferring Employees (s.311 (2) of the Act);
That the UNSW Agreement covers the UNSW and the Transferring Employees (s.313(1) of the Act);
That the Agreement is a transferable instrument (s.312 (1) of the Act); and
That the Applicant as the new employer, or a person who is likely to be the new employer, of the Transferring Employees can make an application for the order sought (s.318(2)(a) of the Act).
I now turn to a consideration of the matters set out in s.318(3) of the Act.
Views of the new employer – s.318 (3)(a)(i)
The Applicant is the new employer, or a person who is likely to be the new employer, who seeks, and is supportive of, the order.
Views of the employees who would be affected by the order – s.318 (3)(a)(ii)
The application included documents signed by the Transferring Employees which stated they were supportive of the application and the orders being made.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.318 (3)(b)
The Applicant submitted that there are no employees who would be disadvantaged by the proposed order. In support of this submission, the Applicant relies on a document setting out a comparison between the UNSW Agreement and the USYD Agreement and has confirmed the salaries paid to the Transferring Employees will be higher than the salaries previously paid by UNSW.
The nominal expiry date of the agreement – s.318 (3)(c)
The nominal expiry date of the UNSW Agreement is 31 December 2021.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.318 (3)(d)
The Applicant submits that the UNSW Agreement will have a negative impact on the productivity of its human resource and payroll function.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.318 (3)(e)
The Applicant submits that it will incur significant economic disadvantage through additional human resource and payroll costs as a result of managing the Transferring Employees under a separate instrument. The Applicant submits this will require additional staffing and estimates this cost to be in excess of $100,000.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.318 (3)(f)
That the Applicant will need to implement additional systems and processes to accommodate the terms and conditions of the UNSW Agreement illustrates the lack of business synergy between that instrument the USYD Agreement.
The public interest – s.318 (3)(g)
Having regard to all of the material before me, I am not of the view that there are public interest reasons weighing against making the orders sought.
Conclusion
Taking into account the matters to be considered in section 318(3) of the Act and all of the materials before me, I am satisfied that it is appropriate that this application be granted and an Order [PR743881] to that effect will be issued in conjunction with this decision.
In accordance s.318(4) of the Act, the Order shall take effect from the later of the following:
a.the time when the Transferring Employees become employed by the Applicant; or
b.the day on which the Order is made.
COMMISSIONER
[1] Sally Anne Bracewell, John Turnbull and Graeme Clarke.
Printed by authority of the Commonwealth Government Printer
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