University of Sunshine Coast

[2017] FWC 6599

[2017] FWC 6599

FAIR WORK COMMISSION

DECISION

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

University of Sunshine Coast
(AG2017/5466)

Educational services
COMMISSIONER SIMPSON	BRISBANE, 11 DECEMBER 2017

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

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by University of Sunshine Coast (the Applicant) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument. The Applicant was represented by Clayton Utz Lawyers.

[2] The Application has been made in the context of a transfer of business between the Applicant and Queensland University of Technology. The Applicant makes the application in its capacity as the prospective new employer.

[3] The Applicant seeks the following orders:

1. the Transferable Instruments will not cover the Applicant, or any employees of the Queensland University of Technology (QUT) who commence employment with the Applicant upon the acquisition of the Caboolture Campus of QUT by the Applicant (Transferring Employees);

2. the University of the Sunshine Coast Enterprise Agreement (2014 - 2018) (USC Agreement) will cover the Transferring Employees upon the commencement of their employment with the Applicant, subject to its terms with respect to coverage and application.

[4] Section 318 of the Act sets out the circumstances in which an order 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.

[5] The Applicant is acquiring the Caboolture Campus from QUT. Completion of the acquisition is expected to occur on 8 January 2018. 32 employees have accepted offers of employment with the Applicant and their employment is expected to transfer from QUT to the Applicant commencing 8 January 2018.

[6] On 23 November 2017, the Applicant sent an email to my chambers advising that it had received confirmation from each of the unions a party to this application (namely the NTEU, United Voice and Together Queensland) that:

• they consented to the proposed orders set out in the Form 40 Application in this matter in relation to the transfer of business of the Caboolture Campus from QUT to USC; and
• they consented to the proposed orders being made by the Commission on the papers.

[7] Representatives from the NTEU, United Voice and Together Queensland were copied to the Applicant’s email sent to chambers on 23 November 2017.

[8] 31 of the 32 Transferring Employees are currently covered by transferrable instruments and also fall within the coverage and classifications of the Sunshine Coast Enterprise Agreement (2014-2018) (USC Agreement).

[9] The effect of the order if granted is that 31 out of the 32 Transferring Employees on becoming employed by University of the Sunshine Coast will not continue to be covered by the Queensland University of Technology Enterprise Agreement (Academic Staff) 2014 - 2017 and the Queensland University of Technology Enterprise Agreement (Professional Staff) 2014 - 2017, and will instead be covered by the USC Agreement.

[10] The final employee is not covered by the Transferable Instruments and does not fall within the coverage clause of the USC Agreement.

[11] I have had regard to an affidavit of Mark Nugent the Director of Human Resources for the Applicant.

[12] It is apparent from that affidavit that the circumstances will give rise to a transfer of business within the meaning of section 311(1) of the Act.

[13] Having considered the views of the new employer and the new employees and it is apparent both are in support of the orders being made. I am also satisfied on the basis of the contents of the affidavit that employees accepting employment with the Applicant will not be disadvantaged if the orders are made.

[14] I am also satisfied there will be a cost impact on the Applicant if it were required to maintain the terms of the Transferrable Instruments because of the requirement to manage and maintain separate terms and conditions for the relatively small cohort of employees compared to the wider workforce.

[15] The practical application of some provisions under the Transferable Instruments different from the USC Agreement and to that extent there is not a business synergy between them. There are no grounds to indicate it would be contrary to the public interest to make the orders.

[16] Having considered each of the matters that are required to be taken into account in section 318(3) I am satisfied that the requirements of s.318 of the Act have been met. Orders will issue with this decision.

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