Transit (NSW) Services Pty Ltd - [2013] FWC 6894

[2013] FWC 6894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 768BA - Application for an order about coverage for transferring employees under a state instrument

Transit (NSW) Services Pty Ltd
(AG2013/8712)

DEPUTY PRESIDENT SAMS

SYDNEY, 16 SEPTEMBER 2013

Application for an order about coverage for transferring employees under a State instrument.

[1] This is an application filed by Transit (NSW) Services Pty Ltd (the ‘applicant’) which seeks orders from the Fair Work Commission (the ‘Commission’) pursuant to s 768BA(2)(b)(ii) of the Fair Work Act 2009 (the ‘Act’) that the greenfields agreement known as the Transit (NSW) Services Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2013 [AE402578] (the ‘Agreement’) apply to employees of the applicant to the exclusion of the Western Sydney Buses Bus Operators’ Transitway Enterprise (State) Award 2011 (the ‘State Award’). I note that the Agreement was approved by the Commission on 11 July 2013; See: Transit (NSW) Services Pty Ltd [2013] FWCA 4974.

[2] S 768BA of the Act is set out as follows:

‘768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re-employment time covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to be a transferring employee;

(ii) the new employer or a person who is likely to be the new employer;

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(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 a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the copied State 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…

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: [2013] FWC 6894
Decision Date: 16 SEPTEMBER 2013

CaseChat Overview and Summary

Transit (NSW) Services Pty Ltd was the subject of an application brought before the Fair Work Commission. The matter involved the dispute about the coverage of employees transferring under a State instrument. The Commission was required to determine whether the employees who were transferring from one employer to another were covered by the relevant workplace agreement.

The legal issues before the Commission were whether the transferring employees were covered by the existing workplace agreement, and if not, what the implications of this were for the terms and conditions of their employment. The case hinged on the interpretation of the relevant State instrument and the provisions of the Fair Work Act 2009.

The Commission found that the transferring employees were indeed covered by the existing workplace agreement. This decision was based on the interpretation of the State instrument and the provisions of the Fair Work Act. The Commission determined that the terms of the workplace agreement applied to the transferring employees, ensuring continuity in their employment conditions. This ruling provided clarity for both the employer and the employees regarding their rights and obligations under the agreement.

The Commission made orders that the workplace agreement applied to the transferring employees, and that they were to be treated in accordance with the terms of the agreement. This decision provided a definitive resolution to the dispute, ensuring that the employees were protected under the existing agreement.

Orders