TNT Australia Pty Ltd T/A TNT Express

[2020] FWC 1333

[2020] FWC 1333

FAIR WORK COMMISSION

DECISION

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

TNT Australia Pty Ltd T/A TNT Express
(AG2020/603)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 24 MARCH 2020

Application for an Order relating to instruments covering new employer and transferring employees.

[1] This matter involves an application made under section 318 of the Fair Work Act 2009 (the Act). The application has been made by Ashurst lawyers on behalf of their client, TNT Australia Pty Ltd trading as TNT Express (TNT or the Applicant). The application has been made in respect of prospective employees of TNT, as part of the integration of the Australia operations of the TNT Group (which operates through TNT Australia Pty Ltd) and Federal Express (Australia) Pty Ltd (FedEx AU) which operates through Federal Express (Australia) Pty Ltd, following the acquisition of TNT Express NV and its related companies by FedEx Corporation on 25 May 2016.

[2] The application was lodged at Sydney on 10 March 2020. The application seeks an Order from the Fair Work Commission (the Commission) relating to former employees of FedEx AU who are prospective employees of TNT (the Transferring Employees).

[3] The application contains grounds and submissions which, in relevant summary, contend that:

•  The Transferring Employees are currently employed by FedEx AU under the terms of the Federal Express (Australia) Pty Limited and Federal Express Corporation National Enterprise Agreement 2016 (the FedEx Agreement);

•  Between 1 April 2020 and 30 April 2020, TNT will make offers of employment to all employees employed by FedEx AU and those employees who accept the offers of employment will be employed by TNT from 1 June 2020 (the Transfer). Following the Transfer, the FedEx AU employees who accept employment with TNT will perform work for TNT which is the same, or substantially the same, as the work they performed for FedEx AU;

•  There is an association between TNT and FedEx AU, and a transfer of business from, relevantly, FedEx AU to TNT in satisfaction of the meaning of transfer of business contained in Division 2 of Part 2-8 of the Act, will occur when the Transferring Employees commence employment with TNT as is anticipated.

•  The Transferring Employees from FedEx AU performing Transferring Work with TNT would be covered by the FedEx Agreement, which would create significant operational challenges for TNT. Furthermore, the Transferring Employees will either be provided with more generous terms and conditions of employment, or substantially similar terms and conditions under TNT’s Industrial Arrangements.

[4] The matter was listed for a Hearing in Chambers on 24 March 2020. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[5] The application seeks that the Commission make an Order under s.318 of the Act. Section 318 is in the following terms:

“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.”

[6] The Commission has reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the Orders sought.

[7] Having examined and considered the application, and the accompanying materials including the Witness Statement of Peter Gutsche, I have taken into account the provisions of paragraphs (a) to (g) of subsection 318 (3) of the Act and I am satisfied that it is appropriate to make Orders in this instance. Consequently, the application is granted, and Orders [PR717433] broadly in accordance with the terms sought will be issued accordingly.

COMMISSIONER

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<AE418785  PR717430 >