University of the Sunshine Coast

[2016] FWCA 188

[2016] FWCA 188

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 the Sunshine Coast
(AG2015/7711)

Educational services
COMMISSIONER JOHNS	MELBOURNE, 13 JANUARY 2016

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

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (Act) by the University of Sunshine Coast (USC) seeking an order from the Fair Work Commission (Commission) that a transferrable instrument, being the University of Southern Queensland Enterprise Agreement 2014-2017 (the Agreement) not apply to the applicant and former Transferring Employees who commence employment with USC after the date of the transfer of business.

[2] The application was supported by an affidavit from Jodie-Anne Turner, the applicant’s Senior Consultant, Human Resources, affirmed on 17 December 2015 and detailed submissions filed on 11 January 2016.

[3] Section 318 of the Fair Work Act 2009 (Cth) (Act) sets on 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.

[4] The Commission will now consider each of the matters it is required to consider under s.318(3).

s.318(3)(a)(i) - the views of the new employer

[5] The University submitted that the Order sought would standardise operations and promote long term interests. In particular the order would provide the applicant with certainty and consistency between employees and help reduce economic disadvantage as a result of the transfer.

s.318(3)(a)(ii) - the view of the employees who would be affected by the order

[6] USC submitted that a majority of employees supported the Orders sought and wish to be employed under the University Sunshine Coast Agreement 2010-2013 (New Agreement). Furthermore, the National Tertiary Education Industry Union (NTEU), United Voice (UV). The Australian Municipal Administrative Clerical and Services Union (ASU) and Together Queensland Industrial Union of Employees, confirmed, in writing, their support for the proposed Orders.

s.318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[7] USC submitted that the proposed Orders would not significantly disadvantage any employee. USC submitted that under the new Agreement, employees would have, amongst other entitlements, more generous maternity and adoption leave entitlements, more generous redundancy benefits, flexible hour arrangements, more beneficial higher duties payment and an increase in number of circumstances where paid leave is provided.

s.318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement

[8] The nominal expiry date of the University Sunshine Coast Agreement 2010-2013 was 30 June 2013. The applicant indicated that it was in discussions in relation to a replacement enterprise agreement.

s.318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[9] USC submitted that if the transferable instrument would continue to apply, it would have an adverse impact upon employee morale and productivity. The applicant submitted that, in the event the transferable instrument continued to govern the entitlements of employees, there would be a need to administer and apply differing terms and conditions for employees in similar roles.

s.318(3)(e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[10] USC submitted that economic disadvantage would be sustained in the event that the University had to apply two separate enterprise agreements to its staff.

s.318(3)(f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[11] USC submitted that the two agreements are incongruent and incompatible, they did not exhibit a level of synergy, and subsequently could not effectively co-exist. For example, USC submitted that both enterprise agreements have differing dispute resolution procedures.

s.318(3)(g) - the public interest

[12] The Commission, as presently constituted, is satisfied that it is not against the public interest to grant the Orders sought by USC.

[13] Having considered the application and the materials filed in support of the application, the Commission is satisfied that all the requirements of s.318 of the Act have been met. An order will be issued with this decision.

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