Wanslea Family Services Inc

[2015] FWC 8061

[2015] FWC 8061

FAIR WORK COMMISSION

DECISION

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

Wanslea Family Services Inc
(AG2015/5732 and AG2015/5733)

COMMISSIONER WILLIAMS PERTH, 24 NOVEMBER 2015

Transfer of instruments.

[1] These are applications made pursuant to section 318 of the Fair Work Act 2009 (the Act) by Wanslea Family Services Inc (the applicant). The applications seeks orders that the transferrable instruments, the City of Rockingham Enterprise Agreement 2012 [AE895727] and the City of Rockingham Child Care Services Enterprise Agreement 2012 [AE898459] not cover or apply to the applicant’s employees working at the Rockingham Early Learning and Development Centre formerly known as the City of Rockingham Child Care Centre. The applicant applies in its capacity as a person who is the likely new employer (section 318(2)(a) of the Act).

[2] Section 318 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:

“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.”

Consideration

[3] The applicant has provided submissions addressing the relevant considerations in section 318 of the Act.

[4] The applicant has also provided a document signed by the transferring employees confirming they agree to the orders sought.

[5] The view of the applicant is that the Commission should make the orders sought.

[6] The submissions on behalf of the applicant and the supporting material provided have satisfied me that there is no disadvantage for the transferring employees if these orders are made.

[7] Taking in to account the matters to be considered in section 318(3) of the Act I am satisfied that it is appropriate that this application be granted and orders to that effect will be issued in conjunction with this decision.

COMMISSIONER

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