Venturi Investments Pty Ltd; Rocky Glen Investments Pty Limited; Fiduzu Pty Limited; Francher Pty Ltd

[2015] FWC 1781

[2015] FWC 1781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Venturi Investments Pty Ltd; Rocky Glen Investments Pty Limited; Fiduzu Pty Limited; Francher Pty Ltd
(AG2015/403)

COMMISSIONER SPENCER BRISBANE, 12 JUNE 2015

Application for an order relating to instruments covering new employer and non-transferring employees - CA429 of 2002 - East End Hotel Certified Agreement 2002

[1] Venturi Investments Pty Ltd; Rocky Glen Investments Pty Limited; Fiduzu Pty Limited; Francher Pty Ltd (the Applicants) have made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an Order that a transferrable instrument, CA429 of 2002 - East End Hotel - Certified Agreement (the Agreement), that covers, or is likely to cover, the new employers (the Applicants), because of a provision of Part 2-8 of the Act, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the Applicants.

[2] The Applicants state that all of the Applicant companies are owned by the related entity; SSUT Pty Ltd. SSUT Pty Ltd is a party to the Agreement and currently employs employees at the East End Hotel and Hay Point Hotel. It is intended that the Applicant companies will employ these employees directly (transferring employees). These transferring employees will be covered by the Agreement by operation of s.313 of the Act. Non-transferring employees will be covered by the applicable Industrial Instrument (Modern Award). The Applicant seeks an Order, pursuant to s.319(1)(b), that the Agreement covers non-transferring employees of the Applicants who perform the transferring work.

[3] Directions were set for the filing of materials by the Applicant. The Applicant filed submissions and evidence in the form of Affidavits of Mr Frank Venturi, the sole Director of each of the Applicants. A comparison was provided to the Applicant, and the Applicant filed further evidence. The matter was listed for hearing. Mr Chris Mossman, of M+K Lawyers appeared for the Applicant. Mr Frank Venturi attended by telephone.

Relevant legislation

[4] Section 319 of the Act provides:

319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an Order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an Order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

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

Summary of Applicant’s submissions

[5] The Applicant filed submissions and an affidavit of the sole Director of all of the Applicants and addressed the criteria in relation to s.319(3) of the Act in the application. The Commission sought further information on whether non-transferring employees would be disadvantaged by the Order sought. The Applicants subsequently filed a further Affidavit of the sole Director, and a comparison of the Hospitality Industry (General) Award 2010 (the Award) and the Agreement.

[6] The Applicant submitted that the Order sought will avoid some employees being covered by one agreement whilst other employees in the same workplace are covered by a different industrial instrument (the Award).

[7] Further, the Applicant submitted that the Order sought will avoid the administrative challenges of applying two different industrial instruments to employees in a small workplace.

[8] The Applicant submitted that there were currently no non-transferring employees, or employees who would be affected by the Order at the time the application was made, as the application relates to a proposed restructure.

[9] It was submitted that, as the transfer of business was contingent upon the Order being granted, if the Order was not granted, new employees would be covered by the Agreement as all employees would continue to be employed by SSUT Pty Ltd. It was submitted that existing transferring employees would not be disadvantaged as they will continue to be covered by the Agreement.

[10] A preliminary comparison was provided to the Applicant, which indicated that the rates under the Agreement fell below the Modern Award. The Applicant provided the rates as currently paid to the existing employees. The Applicant provided an undertaking (attached at Annexure A) from Mr Frank Venturi, sole Director of each of the Applicants, in relation to the pay rates that would apply to both transferring and non-transferring employees. It is accepted that Mr Venturi has the authority to give such an undertaking. The Applicant submitted that the non-transferring employees will not be disadvantaged, as they would be paid rates of pay per hour at rates higher than those in the Modern Award.

[11] The Agreement has a nominal expiry date of 11 November 2005.

[12] The Applicant submitted that the Agreement would not have a negative effect on productivity, as it was in the interests of each of the Applicants to be covered by the Agreement, and if the Applicants are not covered by the agreement, the restructure will not proceed.

[13] The Applicant submitted that no economic disadvantage would be suffered by the effect of the Agreement covering the Applicants.

[14] The Applicant submitted that there were significant synergies between the Agreement and the Applicants’ businesses. It was submitted that SSUT Pty Ltd and the Applicants will be involved in similar businesses and that employees from SSUT Pty Ltd will be transferred to the Applicant businesses as and when they acquire hotels.

[15] The Applicant submitted that the making of the Order would not offend the public interest and submitted that it was not in the public interest for a business to be covered by multiple industrial instruments, which would create disparity amongst the workforce.

Consideration

[16] I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.

[17] The Order, PR567731, will issue with this decision and will take effect in accordance with s.319(4) of the Act.

COMMISSIONER

Appearances:

C. Mossman, of M+K Lawyers, for Venturi Investments Pty Ltd; Rocky Glen Investments Pty Limited; Fiduzu Pty Limited; and Francher Pty Ltd.

Hearing details:

2015.

Brisbane:

May 21.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562032>

Annexure A