Trimatic Management Services Pty Ltd
[2023] FWC 1428
•27 JUNE 2023
| [2023] FWC 1428 |
| 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 Ltd
(AG2023/1909)
| Clerical industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 27 JUNE 2023 |
Application for an order relating to instruments covering a new employer and transferring employees
Issue and outcome
Trimatic Management Services Pty Ltd (the Applicant) has applied under s 318 of the Fair Work Act 2009 (Cth) (the Act) for orders relating to employees who are working for National Hearing Centres Pty Ltd (Amplifon) and who are proposed to work for the Applicant, as of 26 June 2023, with a second tranche commencing on 10 July 2023 (transfer dates).[1] The 55 prospective transferring employees (the Transferring Employees) are currently covered by the National Hearing Care (Contact Centre) Enterprise Agreement 2016 (NHC EA).[2] The Applicant seeks orders that the Transferring Employees will be covered by the Trimatic Management Services Pty Ltd Enterprise Agreement 2014[3] (TMS Agreement) on commencement of employment with the Applicant.
Recently, Amplifon, Telco Services Australia Pty Ltd (TSA), and the Applicant, entered into a memorandum of understanding relating to a transfer of business that will involve TSA and the Applicant acquiring Amplifon’s ‘Client Care Program’ consisting of intellectual property, campaigns and activities, and the work undertaken by employees associated with the Client Care Program.[4]
It is uncontroversial that there is to be a transfer of business as that phrase is understood by reference to s 311(1) of the Act. Briefly stated, the Transferring Employees:
a) will cease employment with the Amplifon on or around 26 June 2023;[5]
b) will commence employment with the Applicant on or around 26 June 2023 and 10 July 2023, this being within the three months prescribed by s 311(1)(b);[6]
c) will perform the same or substantially the same work for the Applicant as they did for Amplifon;[7] and
d) will in the future (as outlined) be employed by the Applicant, the Applicant having the beneficial use of some or all of the assets of Amplifon, which gives rise to the requisite connection between the old employer and new employer referred to in s 311(1)(d) (see also s 311(3) of the Act).
The Applicant now seeks the following orders under s 318(1) of the Act:
a) pursuant to s 318(1)(a), that the NHC EA, as a transferrable instrument, does not, and will not, cover the Applicant as the new employer of the Transferring Employees of Amplifon and the Transferring Employees;
b) pursuant to s 318(1)(b), that the TMS Agreement that covers the Applicant, will cover the Transferring Employees formerly employed by Amplifon.
In short, I have reviewed the application documentation and the accompanying material. The documents filed outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application and the evidence in support of the application provided by Brittany Eaman, Group People Operations Manager for the Applicant (Eaman), Claire Formby, Group Manager Payroll for the Applicant (Formby), and Declan Scott, HR Business Partner for Amplifon (Smith), address the relevant legislative requirements which are asserted to provide a proper basis for the making of the orders sought.
I am satisfied this circumstance is a transfer of business and that the NHC EA is a transferable instrument. If the order under s 318(1)(a) was not made, then by virtue of s 313(1)(a), the NHC EA would cover the Transferring Employees notwithstanding their employment with the Applicant. 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 the orders sought under s 318. The Orders issue concurrently with this decision.[8]
My detailed reasons for granting the Orders follow.
Background
The application contained detailed grounds and submissions and was accompanied by the witness statements of Eaman, Formby, and Smith. Shortly stated, the evidence filed contend that which is listed:
a) on 16 May 2023, Amplifon commenced a period of consultation with affected employees about the proposed transfer of business. On this date, Amplifon held a ‘town hall’ meeting with all affected employees and informed them, amongst other things, that the Applicant intended to apply to the Fair Work Commission under s 318 of the Act to:
i.stop the transfer of the NHC EA on the transfer dates; and
ii.effective the transfer dates, have Amplifon employees transfer onto the TMS Agreement.[9]
b) on 17 May 2023, Amplifon confirmed this in writing to all prospective Transferring Employees by letter;[10]
c) as part of consultation, prospective Transferring Employees were notified that they would be offered ongoing employment with the Applicant on terms and conditions substantially similar to and on an overall basis, no less favourable than, their current terms and conditions of employment with Amplifon and that the Applicant would recognise the prospective Transferring Employees’ prior service with Amplifon for the purpose of applicable industrial entitlements;[11]
d) in addition to the abovementioned consultation, on 24 May 2023, following the notice meetings, Amplifon invited all prospective Transferring Employees to participate in a feedback survey, where three questions were asked of them:
i.Question 1 – Have you compared your current terms and conditions of employment with Amplifon with the terms and conditions offered by TSA?;
ii.Question 2 – Would you be willing to accept the terms and conditions offered by TSA?; and
iii.Question 3 – Please describe your concerns with the proposed terms and conditions of employment with TSA;[12] and
e) of the 57 prospective Transferring Employees, 19 responded to the survey with the following percentage results for each question:
i.Question 1 – 78.9%;
ii.Question 2 – 100%;
iii.Question 3 – 0%.[13]
The Applicant is a subsidiary of TSA and whilst the consultation was with respect of offers of employment with the Applicant, it is observed that the employees were asked, in the survey about employment with TSA. However, correspondence issued by the Applicant to the Transferring Employees on 26 May 2023 and 12 June 2023 clarified that it was the Applicant that was offering employment, and that it was a subsidiary of TSA.[14] In the circumstances, I am satisfied that the Transferring Employees were informed that they were to be employed by the Applicant.[15]
The application is not opposed by the Australian Municipal, Administrative, Clerical and Services Union West Australian Branch, being an employee organisation that is covered by the NHC EA.
Having received no objection to the application being determined on the papers, I proceeded to determine the matter by reference to, and with reliance upon the grounds, submissions and other materials provided with the application.
Legislative framework
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.
The discretion to make the orders sought by the Applicant 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.[16] 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.[17]
Section 318 of the Act sets out the circumstances in which an order such as that sought by the Applicant may be made by the Commission:
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.
The exercise of the discretion given to the Commission in this regard is undertaken within the object of this Part of the Act, which states 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.
Consideration
The Applicant is the likely new employer of the Transferring Employees for the purpose of s 318(2)(a) of the Act, and it therefore follows that the application is validly before the Commission.
As observed, I am satisfied this circumstance is a transfer of business as understood by reference to s 311 and that the NHC EA is a transferable instrument as described in s 312(1)(a). If the order under s 318(1)(a) was not made, then I consider by virtue of s 313(1)(a), the NHC EA would cover the Transferring Employees notwithstanding their employment with the Applicant.
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 the Applicant supports the application as do the majority of Transferring Employees who have been consulted of the Applicant’s intention to make the application. I have concluded that it is appropriate to grant the orders sought. In my view, there are no public interest considerations that would militate against the orders sought under s 318(1)(a) and (b).
Conclusion
In accordance with s 318(4), the Orders will come into effect on the date the Orders are made or from the time when the Transferring Employees commence working for the Applicant, whichever is the latter.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Witness Statement of Brittany Eaman, [7] (Eaman Statement).
[2] AE422874.
[3] AE410835.
[4] Witness Statement of Declan Scott, annexure DS-1 (Scott Statement).
[5] Ibid [8].
[6] Ibid.
[7] Ibid [6].
[8] PR763157.
[9] Scott Statement (n 4) [9].
[10] Ibid [10], annexure DS-4.
[11] Ibid [11], annexure DS-5.
[12] Eaman Statement (n 1) [16], annexure BE-3.
[13] Ibid [17], annexure BE-3.
[14] Supplementary Witness Statement of Brittany Eaman, [5].
[15] Ibid annexure BE-2.
[16] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1259].
[17] Ibid.
Printed by authority of the Commonwealth Government Printer
<AE422874 PR763156>
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