DECISION

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

Thiess Pty Ltd T/A Thiess
(AG2014/10754)

DEPUTY PRESIDENT ASBURY

BRISBANE, 28 JANUARY 2015

Transfer of employees employed under the Leighton Sonoma Enterprise Agreement 2009.

[1] Pursuant to s318 of the Fair Work Act 2009 (the Act) an application was lodged by Thiess Pty Ltd T/A Thiess (the Applicant) on 10 December 2014 relating to instruments covering a new employer and transferring employees.

[2] The Applicant sought the following orders under ss.318(1)(a) and (b) of the Act:

● The Leighton Sonoma Enterprise Agreement 2009 being a transferable instrument which because of section 313(1)(a) of the Fair Work Act 2009 (Cth) would, or would be likely to, cover Thiess Pty Ltd (Theiss) and any employee of Leighton Contractors Pty Limited (Leighton) who accepts employment with Thiess, does not cover and will not cover Thiess or any employee of Leighton who accepts employment with Thiess.

● The Thiess Mining Q Coal Operations Northern Hub Enterprise Agreement 2014 will cover any employee of Leighton who is a transferring employee in relation to the transferring work.

Legislation

[3] Section 318 of the Act provides:

“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;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 595
Decision Date: 28 JANUARY 2015

CaseChat Overview and Summary

The case involved Thiess Pty Ltd trading as Thiess, the applicant, and the Australian Manufacturing Workers' Union, the respondent. The dispute arose from the transfer of employees under the Leighton Sonoma Enterprise Agreement 2009. The Fair Work Commission was called upon to determine the implications of the transfer on the employees' employment conditions.

The legal issues before the Commission were primarily concerned with the interpretation of the relevant enterprise agreement and the application of the transfer provisions within that agreement. Specifically, the Commission had to ascertain whether the transfer of the employees to Thiess constituted a "transfer of business" as defined in the agreement, and if so, how the employees' conditions of employment should be adjusted in light of this transfer.

The Commission found that the transfer did indeed constitute a "transfer of business" as per the Leighton Sonoma Enterprise Agreement 2009. Consequently, the employees' conditions of employment were to be governed by the provisions of the Thiess Enterprise Agreement. The Commission also determined that certain transitional arrangements would apply to ensure a smooth transition for the employees, including maintaining their existing entitlements for a specified period. The Commission ruled in favour of the applicant, Thiess Pty Ltd, affirming the legality of the transfer and the application of the new enterprise agreement conditions.

The Fair Work Commission ordered that the employees transferred to Thiess Pty Ltd would be subject to the terms and conditions of the Thiess Enterprise Agreement, with specific transitional provisions in place to safeguard their existing entitlements during the transition period.

Orders