Vac Group Operations Pty Ltd T/A Vac Group

[2018] FWCA 3995

[2018] FWCA 3995

The attached document replaces the document previously issued on 26 June 2018 with Print ID [2018] FWC 3144.

The decision has been amended to correct the Print ID.

Rachel Wong
Associate to Deputy President Dean

Dated 5 July 2018

[2018] FWCA 3995

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.320 - Application to vary a transferable instrument - agreement

Vac Group Operations Pty Ltd T/A Vac Group

(AG2018/2000)

Vac Group Employees Onsite Enterprise Agreement

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 26 JUNE 2018

Application for to vary a transferable instrument - Vac Group Employees Onsite Enterprise Agreement 2016-2020.

1. Vac Group Operations Pty Ltd (VGO) has made an application pursuant to s.320 of the Fair Work Act 2009 (the Act) to vary the Vac Group Employees Onsite Enterprise Agreement 2016 – 2020 (the Agreement). The Agreement has a nominal expiry date of 25 February 2020.

1. VGO’s application was made in the context of a transfer of business between VGO and its associated entity, Vac Group Employees Pty Ltd (VGE). The transfer of business within the meaning of s.311(1) of the Act arises when employees performing on-site construction work for VGE are transferred to VGO with effect on and from 26 June 2018. In accordance with s.313(1) of the Act, the Agreement, being a transferable instrument by virtue of s.312(1)(a) of the Act, covers VGO (new employer) and the transferring employees.

1. VGO seeks variations to the Agreement by changing its title to ‘Vac Group Operations Pty Ltd Onsite Enterprise Agreement’ and changing all references to VGE to the new employer, VGO. It states the reason for seeking the variations is to remove ambiguity and uncertainty about the coverage and application of the Agreement arising from the transfer of business.

1. Section 320 of the Act provides:

   320 Variation of transferable instruments

   Application of this section

   (1)  This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

   Power to vary transferable instrument

   (2)  The FWC may vary the transferable instrument:

   (a)  to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

   (b)  to remove an ambiguity or uncertainty about how a term of the instrument operates if:

   (i)  the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii)  the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or

(c)  to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

Who may apply for a variation

(3)  The FWC may make the variation only on application by:

(a)  a person who is, or is likely to be, covered by the transferable instrument; or

(b)  if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that the FWC must take into account

(4)  In deciding whether to make the variation, 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 transferable instrument as varied;

(b)  whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(c)  if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;

(d)  whether the transferable instrument, without the variation, 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, without the variation;

(f)  the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g)  the public interest.

Restriction on when variation may come into operation

(5)  A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

(a)  the time when the transferable instrument starts to cover the new employer;

(b)  the day on which the variation is made.

1. The application is supported by a statutory declaration of Ms Sarah Kirley, HR Manager of VGO. Ms Kirley states that both VGO and VGE are wholly-owned subsidiary companies of Vac Group Holdings Pty Ltd (Vac Group) and the application is supported by all Directors of Vac Group and VGO. Ms Kirley states that the only intended effect of the proposed variation is to ensure references to the employer in the Agreement are references only to VGO and such variation will not result in any VGO employees being disadvantaged as to the terms and conditions of their employment.

1. VGO has also provided copies of signed forms from the employees covered by the Agreement indicating that they agreed to the variation sought.

1. Having considered the material before me, I am satisfied that all the requirements of s.320 of the Act have been met and that it is appropriate to vary the Agreement in the terms sought. In reaching my decision, I have also taken into account all of the matters set out in s.320(4). Accordingly, VGO’s application for variation is granted. An Order giving effect to the variation will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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