The University Of Sydney

[2018] FWC 6720

[2018] FWC 6720

FAIR WORK COMMISSION

DECISION

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

The University Of Sydney
(AG2018/5116)

COMMISSIONER JOHNS SYDNEY, 1 NOVEMBER 2018

s.318 Application for an order relating to instruments covering a new employer and transferring employees.

[1] The University Of Sydney (USyd/Applicant) has applied for an order under section 318 of the Fair Work Act 2009 (the Act) dealing with instruments covering a new employer and transferring employees in the context of a transfer of business.

[2] The NHMRC Centre of Research Excellence in Mental Health and Substance Use (CREMS) is a centre originally operated and funded by the University of New South Wales (UNSW).

[3] CREMS will transfer from UNSW to USyd, with approximately 41 employees having indicated an intention to accept employment with USyd (Transferring Employees). As part of the transfer, both parties have agreed that staff will transfer from UNSW to USyd.

[4] UNSW currently has two enterprise agreements which apply to their staff at CREMS:

a) UNSW Australia (Academic Staff) Enterprise Agreement 2015 and;

b) UNSW Australia (Professional Staff) Enterprise Agreement 2015

(“UNSW Agreements”)

[5] USyd has one enterprise agreement, the University of Sydney Enterprise Agreement 2018-2021 (USyd Agreement), which, but for the transfer of business provisions in the FW Act, would apply to all staff from CREMS who accept employment with USyd.

[6] USyd seeks an order from the Commission that the Transferring Employees will be covered by the USyd Agreement and not the UNSW Agreements upon commencement with USyd.

[7] The initial application was accompanied by supporting affidavits of

a) Ms Maree Rose Teesson, Professor and Director, CREMS;

b) Ms Cindi Louise Boyce, HR Senior AManager – Administration and Process Improvement; and

c) Ms Kaye Woodhouse, Payroll Manager.

[8] Section 318 of the Act provides:

“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.”

[9] In Directions dated 14 September 2018 Applicant was directed to provide to all affected employees and relevant employee organisations a copy of the Directions issued by the Commission which required a response by 12 October 2018 if they wished to oppose the application. No opposition to the application was received from or on behalf of the employees.

[10] On 25 September 2018, in accordance with the Directions, the Applicant filed:

a) Outline of Argument dated 25 September 2018;

b) Witness Statement of Professor Maree Teesson sworn 10 September 2018;

c) Witness Statement of Cindi Boyce sworn 11 September 2018;

d) Witness Statement of Kaye Woodhouse sworn 6 September 2018; and

e) Draft Orders.

[11] The Applicant’s evidence, which was not contested, dealt with each of the matters that the Commission must take into account in s.318(3).

[12] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 of the Act have been met and an Order in the terms sought should be made.

[13] An Order will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR701913>