Trimatic Management Services Pty

[2021] FWC 6680

[2021] FWC 6680

FAIR WORK COMMISSION

DECISION

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

Trimatic Management Services Pty
(AG2021/8668)

Clerical industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 23 DECEMBER 2021

S.318 - Application for an order relating to instruments covering new employer and transferring employees

[1] Trimatic Management Services Pty Ltd (TMS)has applied for an order under s 318 of the Fair Work Act 2009 (Cth) (Act) relating to the transfer of 55 employees (Transferring Employees) from National Hearing Centres Pty Ltd (Amplifon) to its business.

[2] TMS forms part of the TSA Group (Telco Services Australia Pty Ltd (TSA)). The TSA Group is in the business of providing outsourced contact centre services across Australia and the Philippines for its national and international clients. 1 Employees of TMS are employed under the terms of the Trimatic Management Service Pty Ltd Enterprise Agreement 2014 (AG2014/9552) (TMS Agreement).2

[3] Amplifon, TSA and TMS, recently entered into an agreement for the acquisition of Amplifon’s Contact Centre function. 3

[4] Amplifon is said to be a global leader in hearing care, and is headquartered in Milan, Italy. 4 Whilst listed on the Italian Stock Exchange, it operates in 28 countries and five continents.5 Amplifon operates as Amplifon S.p.A in Italy and through a well-established network of companies, including one in Australia.6 Amplifon has outsourced 85% of its call centres. Amplifon’s Australian call centre is one of the only remaining centres that run its call centre internally. The employees at Amplifon’s Contact Centre are covered by the National Hearing Care (Contact Centre) Enterprise Agreement 2016 (AG2016/7554) (NHC Agreement).7

[5] As part of the acquisition, Amplifon reached an agreement with TSA whereby TMS would offer impacted Amplifon employees employment with TMS to avoid job losses when the transfer of the business was to take effect. That transfer is said to take effect on 24 January 2022 (Transfer Date). 8

[6] TMS has therefore applied for the following Orders:

1. That the transferable instrument – National Hearing Care (Contact Centre) Enterprise Agreement 2016 (AG2016/7554) – does not, and will not, cover the Applicant as the new employer (Trimatic Management Services Pty Ltd) and the transferring Amplifon employees.

2. That the industrial instrument that covers the Applicant – Trimatic Management Services Pty Ltd Enterprise Agreement 2014 (AG2014/9552) – will cover the transferring Amplifon employees.

[7] The application is not opposed by the Australian Municipal, Administrative, Clerical and Services Union West Australian Branch (ASU), being an employee organisation that is covered by the NHC Agreement.

[8] The work that the Transferring Employees will purportedly perform is the same, or substantially similar, to the work performed for Amplifon.

[9] TMS was content for the application to be determined on the papers. The application contained detailed submissions and was supported by multiple witness statements.

[10] In short, I have 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 provide a proper basis for the making of the orders sought.

[11] I am satisfied this circumstance is a transfer of business and that the NHC Agreement is a transferable instrument. If the order under s 318(1)(a) was not made, then by virtue of s 313(1)(a) the Agreement would cover the Transferring Employees notwithstanding their employment with TMS. I have considered all the factors set out in s 318(3) and have concluded that it is appropriate and not contrary to the public interest to make orders sought under s 318.

[12] My detailed reasons for granting the orders follow.

Legislative framework

[13] Section 317 of the Act enables the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

[14] The discretion to make the Orders sought by TMS under s 318(1) of the Act will only be exercised after the factors set out in s 318(3) of the Act are considered. 9 These factors, which must be read having regard to the objects of the Part, are intended to enable the Commission to balance appropriately the protection of employees’ entitlements under certain instruments with the need for some flexibility to depart from the default rules about coverage of instruments following a transfer of business.10

[15] Section 318 provides as follows:

318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA 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) FWA 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 FWA must take into account

(3) In deciding whether to make the order, FWA 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.

[16] The exercise of the discretion given to the Commission in this regard is undertaken within the objects of this Part of the Act, which state as follows:

309 Object of this Part

The object of this Part is to provide a balance between:

(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

(b) the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.

Valid application

[17] TMS is the likely new employer for the purposes of s 318(2)(a) of the Act and it therefore follows that the application is validly before the Commission.

Consideration of matters that the Commission must consider

[18] Without recounting the particulars set out in the application or in the material accompanying the application, I have had regard to that material filed and considering the matters in s 318(3) of the Act, I am satisfied that:

a) TMS has standing to make the application;

b) the Transferring Employees had been notified of TMS’ intention to apply the TMS Agreement during a townhall meeting on 16 November 2021;

c) in particular, the Transferring Employees were informed at the townhall meeting on 16 November 2021 that TMS would be applying to the Commission to stop the transfer of the NHC Agreement on the Transfer Date and to have the Transferring Employees covered by the TMS Agreement;

d) at the townhall meeting on 16 November 2021, the Transferring Employees were informed of the employment terms and conditions under the TMS Agreement; 11

e) following the townhall meeting a copy of the TMS Agreement was shared with the Transferring Employees via their internal intranet, giving them the opportunity to review and consult with both the Amplifon leadership team and TMS during the consultation period;

f) having surveyed the 55 Transferring Employees on 17 December 2021, 30 of the Transferring Employees completed the survey and all agreed that they would like to transfer to the TMS Agreement;

g) when views were sought from the ASU it did not object to the orders sought by TMS;

h) the ASU confirmed that it had met with the Group Operations Manager of TMS on 22 November 2021 to discuss the terms and conditions that the Transferring Employees would be transferred under;

i) the ASU had held further meetings with TMS on 23, 24, and 30 November 2021 in addition to meetings on 1 and 6 December 2021;

j) the ASU had received a comparison table between the NHC Agreement and the TMS Agreement which showed the Transferring Employees would be better off under the TMS Agreement;

k) the ASU noted that TMS had provided written assurances that the prior service of the Transferring Employees’ would be recognised with the TMS;

l) the application of the NHC Agreement to the Transferring Employees would necessitate a complete rebuild of the TMS payroll system and the establishment of processes to accommodate maintaining two enterprise agreements; 12

m) the differences between the NHC Agreement and the TMS Agreement would pose compliance risks to TMS, 13 and as such would require the engagement of an additional Payroll Officer to minimise potential errors and address additional time constraints that may occur because of having two enterprise agreements within the business;

n) the differences between the two enterprise agreements would interfere with TMS’ business synergies considering it would have two groups of employees performing the same work but for which there would be different terms and conditions, extending to ordinary hours, disciplinary processes, bonuses, leave entitlements, and rostered hours of work;

o) if the proposed Orders are not granted TMS will endure the administrative inconvenience of managing one set of working arrangements for its employees and another for the Transferring Employees who are covered by the NHC Agreement, which would in turn impact upon TMS’ ‘Workforce Management System’, a system used to schedule all rosters;

p) the additional costs associated with the introduction of the NHC Agreement to the business would amount to $153,400 per annum; 14 and

q) there are no matters about which I am aware that would render the making of the proposed Orders contrary to the public interest. The goals that would be achieved by making the proposed Orders, namely of business synergy, greater earning potential of the Transferring Employees as well as the fact that 30 of the Transferring Employees who had completed the survey had voted for the Orders, are all matters that are concordant with the public interest.

Conclusion

[19] In accordance with s 318(4), the Orders 15 shall have effect from 12:00 am on 24 January 2022, or the time when the Transferring Employees commence working for TMS, if later.

DEPUTY PRESIDENT

Determined on the papers

Final written submissions:

Friday, 17 December 2021.

Printed by authority of the Commonwealth Government Printer

<AE410835  PR737115>

 1   Witness Statement of Zahra Leyla Peggs (Peggs Statement) [6].

 2   [2014] FWCA 7604; AE410835.

 3   Witness Statement of Gemma Louise Handmer (Handmer Statement) [7].

 4 Peggs Statement [10].

 5   Witness Statement of David Machar (Machar Statement) [7].

 6 Ibid [7].

 7   [2017] FWCA 28; AE422874

 8 Handmer Statement [8].

 9 Explanatory Memorandum, Fair Work Bill [1259].

 10   Ibid.

 11 Handmer Statement [10].

 12   Witness Statement of Fiona Louise Crosswell (Crosswell Statement) [6].

 13 Ibid [10].

 14 Witness Statement of Jason Anthony Webster [13].

 15   PR737116.