University of Western Sydney

[2015] FWC 7979

[2015] FWC 7979

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 Western Sydney
(AG2015/6706)

Educational services
COMMISSIONER JOHNS	SYDNEY, 26 NOVEMBER 2015

Application for an order relating to instruments covering transferring employees - UWSCollege Enterprise Agreement 2013.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (Act) by the University of Western Sydney (UWS) seeking an order from the Fair Work Commission (Commission) that a transferrable instrument, being the UWSCollege Enterprise Agreement 2013 (the Agreement) not apply to former Transferring Employees who commence employment with UWS after the date of the transfer of business.

[2] The application was supported by an affidavit from Christopher Youness, the applicant’s Project Manager, Divisional Services and Process Assessment, Division of Finance and Resources, and detailed submissions filed on 24 November 2015.

[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 administrative difficulties would arise if UWS was to apply two different enterprise agreements. In particular, UWS submitted that the two agreements would create disparity and, possibility inequity between staff employed at UWS. UWS also submitted that the Agreement was shortly to be replaced by a new enterprise agreement.

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

[6] UWS submitted that 12 out of the 15 affected employees demonstrated their support for the proposed Orders. Furthermore, both the National Tertiary Education Industry Union (NTEU) and the Community and Public Sector Union (CPSU) 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] UWS submitted that the proposed Orders would not significantly disadvantage any employee. UWS submitted that under the new University Agreement, employees would have, amongst other entitlements, additional superannuation contributions, increased remuneration, the ability to accrue flex leave and 20 days paid parental leave. UWS acknowledged that the University Agreement would provide for 5 days less annual leave than that provided for under the existing UWSCollege Enterprise Agreement 2013.

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 UWSCollege Enterprise Agreement 2013 was 4 November 2015.

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

[9] UWS submitted that the transferable instrument would have a beneficial impact upon productivity, particularly in preventing the University having to apply two separate enterprise agreements.

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] UWS submitted that economic disadvantage could 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] UWS submitted that there was a high degree of synergy between the University Agreement and the University. UWS submitted that the UWSCollege Enterprise Agreement 2013 did not exhibit the same degree of synergy as the University Agreement.

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 UWS.

[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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