Tyro Payments (BEN Alliance) Pty Ltd Summary

[2022] FWC 3392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Tyro Payments (BEN Alliance) Pty Ltd

(AG2022/5570)

Banking finance and insurance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 30 DECEMBER 2022

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

Tyro Payments (BEN Alliance) Pty Ltd (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the Bendigo and Adelaide Bank Enterprise Agreement 2018 – 2021 (Agreement) does not cover the Applicant and six transferring employees (Transferring Employees). The Agreement nominally expired on 15 December 2022. The Applicant is likely to be the new employer of relevant transferring employees.

The Applicant has filed an affidavit in support of its application, made by Ms Monica Anne Appleby, dated 22 December 2022. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Ms Appleby. Specifically, I note that the relevant Transferring Employees support (by majority) the order/s sought by the Applicant, and that such relevant Transferring Employees will not be disadvantaged overall (in their terms and conditions of employment) if the orders sought are made. Further, the Agreement is likely to have a negative impact upon the productivity of the Applicant’s workplace, and there is a lack of business synergy between the Agreement and the work performed by the Applicant and Transferring Employees. I consider that the order sought by the Applicant is in the public interest as it would allow all of the Applicant’s employees to all be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I have determined to exercise my discretion to make the order sought by the Applicant pursuant to s.318(1) of the Act. An order in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission has been called upon to determine whether the Bendigo and Adelaide Bank Enterprise Agreement 2018 – 2021 applies to Tyro Payments (BEN Alliance) Pty Ltd and six transferring employees, or if the Applicant should be exempt from the agreement. Tyro Payments has applied for an order to exclude itself and the transferring employees from the scope of the Agreement, which expired on 15 December 2022. The crux of the legal issues before the Commission was whether the terms of the Agreement would be detrimental to the productivity of Tyro Payments' workplace, considering the lack of business synergy between the Agreement and the work performed by Tyro Payments and the transferring employees.

The Deputy President Boyce examined the application under section 318 of the Fair Work Act 2009, taking into account the matters specified in section 318(3) of the Act. The Deputy President found that the transferring employees, by majority, supported the order sought by Tyro Payments and that they would not be disadvantaged overall in their terms and conditions of employment if the orders were made. The Deputy President also considered that the Agreement would likely have a negative impact on the productivity of Tyro Payments' workplace and that there is a lack of business synergy between the Agreement and the work performed by Tyro Payments and the transferring employees. Furthermore, the Deputy President found that the order sought by Tyro Payments is in the public interest as it would allow all of the Applicant’s employees to be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace.

In light of the considerations above, the Deputy President Boyce exercised their discretion to make the order sought by Tyro Payments pursuant to section 318(1) of the Fair Work Act 2009. An order in this regard will be issued contemporaneously with this decision.

Tyro Payments (BEN Alliance) Pty Ltd is exempt from the Bendigo and Adelaide Bank Enterprise Agreement 2018 – 2021, and the six transferring employees will also be exempt from the Agreement.

Tyro Payments (BEN Alliance) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established