Transit Systems NSW Pty Ltd
[2023] FWC 1871
•2 AUGUST 2023
| [2023] FWC 1871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Transit Systems NSW Pty Ltd
(AG2023/2385)
TRANSDEV NSW & TWU BUS ENTERPRISE AGREEMENT 2022 - 2026
| Passenger vehicle transport (non-rail) industry | |
| DEPUTY PRESIDENT CROSS | SYDNEY, 2 AUGUST 2023 |
Application for an order relating to instruments covering new employer and non-transferring employees
Transit Systems NSW Pty Ltd (the Applicant) has applied for an order under s.319(3) of the Fair Work Act 2009 (the Act) providing that the Transdev NSW & TWU Bus Enterprise Agreement 2022-2026 (the Agreement) will cover the Applicant in respect of the employment of non-transferring employees performing transferring work for the Applicant.
The Agreement was approved by the Commission on 27 June 2022 and its nominal expiry date is 30 June 2026. The Agreement covers the Transport Workers Union (TWU), and a delegate confirmed that the TWU supports this application. In the absence of an order in the form sought, the relevant non transferring employees would otherwise be covered by the Passenger Vehicle Transportation Award 2020 (the Award).
The Applicable Legislation
Sections 317 and 319 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.
…
319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer
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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(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 nontransferring employee before the later of the following:
(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;
(b) the day on which the order is made.”
I am satisfied that the Applicant is entitled to make the application, which relies upon the terms of s.319(1)(b) of the Act to, in effect, extend the coverage of the Agreement to non-transferring employees. In deciding whether to make an order pursuant to s.319(1)(b) of the Act, the Commission must take into account the matters set out in s.319(3). I now turn to a consideration of each of those matters.
Views of the new employer –s.319(3)(a)(i)
The Applicant is the new employer, who seeks, and is supportive of, the order.
Views of the employees who would be affected by the order –s.319(3)(a)(ii)
It is not possible to obtain the views of the employees who will be affected by the order because there are no non-transferring employees currently employed by the Applicant. The Applicant dispatched an email to the future employees, offering them a chance to make any submissions. The email was sent on 18 July 2023 and relevantly stated:
Good morning,
Transit Systems NSW is looking forward to commencing operations in Region 13 on 6 August 2023.
As you will know from your letter of offer, the Transdev NSW & TWU Bus Enterprise Agreement 2002-2026 (Transdev Enterprise Agreement) will continue to apply to you when your employment commences with Transit Systems NSW Pty Ltd.We have made an application to the Fair Work Commission asking the Commission to make an order that the Transdev Enterprise Agreement also applies to new employees who may join the business as well.
A copy of that application, the Transdev Enterprise Agreement and recent directions made by the Commission are attached.
The Commission invites you to provide any views that you have on the application by email to [email protected] by 4pm, 26 July 2023.
If you have any questions please contact us at [email protected]
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment –s.319(3)(b)
I am satisfied that any non-transferring employees will not be disadvantaged in relation to their terms and conditions of employment by the making of an order.
The nominal expiry date of the agreement –s.319(3)(c)
The nominal expiry date of the Agreement is 30 June 2026.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace –s.319(3)(d)
I am satisfied that there will be no negative impact on productivity if the order is made. In contrast, if the order is not made non-transferring employees subject to different terms and conditions of employment, may have a negative impact on employee engagement and in turn upon workplace productivity.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer –s.319(3)(e)
The Agreement’s coverage of non-transferring employees will not cause any significant economic disadvantage.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer –s.319(3)(f)
The granting of the order will result in a greater degree of synergy for the Applicant and the employees who perform the transferring work, as all employees will be employed pursuant to a single instrument.
The public interest –s.319(3)(g)
The public interest in this matter would be served by facilitating arrangements that permit the maintenance approved employment conditions
I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the Act. I am satisfied the materials support the making of the order.
An order will be issued with this decision [PR764845].
DEPUTY PRESIDENT
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<AE516423 PR764688>
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