[2020] FWC 5575

The attached document replaces the document previously issued with the above code on 4 November 2020.

Paragraph [16] has been updated.

Mackenzie Barnes

Associate to Commissioner Spencer

Dated 4 November 2020

[2020] FWC 5575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes
(AG2020/3093)

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 4 NOVEMBER 2020

Application for an order relating to instruments covering new employer and transferring employees in agreements.

[1] An application pursuant to s.318 of the Fair Work Act 2009 (the Act) was made by Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes (the Applicant) for an order relating to an instrument covering a new employer and transferring employees.

[2] The Applicant sought an Order that the Universal Cranes Pty Ltd and CFMEU Collective Agreement 2013-2016 (the Agreement) will not cover the Applicant and all transferring employees from Universal Cranes Pty Ltd from the date of the Order.

[3] The Applicant provided the following background to the application:

• Universal Cranes (Central Qld) Pty Ltd (ABN 79 636 089 524) (UCQ) made a conditional offer to 11 employees to transfer their employment from Universal Cranes Pty Ltd (ABN 53 106 292 799) to UCQ.

• UCQ is a related entity to Universal Cranes Pty Ltd, both being entities within the Universal Cranes Group.

• On 28 May 2020, employees of UCQ voted unanimously in support for the Universal Cranes Central Queensland Agreement 2020 (the New Agreement). This enterprise agreement was approved by the Fair Work Commission on 21 July 2020.

• The condition of offer of employment relates to the success of this application and UCQ will not employ the transferring employees if the application is not successful.

RELEVANT LEGISLATION

[4] Pursuant to s.313 of the Act:

“313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer…

(3) This section has effect subject to any FWC order under subsection 318(1).”

[5] Further, s.318 of the Act relevantly provides:

“318 Orders relating to instruments covering new employer and transferring employees

(1) 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.

(2) FWC may make the order only on application by any of the following:

(a) the new employer or a person…

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: [2020] FWC 5575
Decision Date: 4 NOVEMBER 2020

CaseChat Overview and Summary

Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes sought an order from the Fair Work Commission under section 318 of the Fair Work Act 2009, seeking to exclude the application of the Universal Cranes Pty Ltd and CFMEU Collective Agreement 2013-2016 to employees transferring from Universal Cranes Pty Ltd. The application was made to avoid the Transferring Instrument due to its outdated nature and its negative impact on the productivity of the new employer's workplace. The new employer wished to employ the transferring employees but believed that the negative commercial and business impact of the Transferring Instrument outweighed the benefits of the employees’ skills, experience, and previous history with Universal Cranes Pty Ltd. The Fair Work Commission considered various factors, including the views of the new employer and the employees, the potential for employee disadvantage, the nominal expiry date of the Transferring Instrument, the negative impact on productivity, and the degree of business synergy between the Transferring Instrument and the new agreement.

The Fair Work Commission found that it was appropriate to make an order in the terms as outlined by the Applicant. The transferring employees would be covered by the new Agreement from the date of the order. The Commission concluded that the new Agreement was better suited to the operating requirements of the new employer and that the negative commercial and business impact of the Transferring Instrument outweighed the benefits of the employees’ skills, experience, and previous history with Universal Cranes Pty Ltd. The order was made in the interest of productivity, economic disadvantage, and the public interest. The transferring employees would be covered by the new Agreement from 4 November 2020.

Orders