Water Corporation T/A Water Corporation

[2020] FWC 783

[2020] FWC 783

FAIR WORK COMMISSION

DECISION

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

Water Corporation T/A Water Corporation
(AG2020/140)

PROGRAMMED PERTH REGION ALLIANCE MECHANICAL AND ELECTRICAL ENTERPRISE AGREEMENT 2018
(ODN AG2018/7046)  [AE501685]

PROGRAMMED PERTH REGION ALLIANCE CIVIL EMPLOYEES ENTERPRISE AGREEMENT 2018
(ODN AG2019/1444)  [AE503709]

COMMISSIONER WILLIAMS PERTH, 13 FEBRUARY 2020

Transfer of instrument.

[1] This is an application made pursuant to section 318 of the Fair Work Act 2009 (Cth) (the Act) by the Water Corporation Pty Ltd (the Applicant). The application seeks orders that two transferrable instruments, the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018 [AE503709] (the Programmed Civil Agreement) and the Programmed Perth Region Alliance Mechanical and Electrical Enterprise Agreement 2018 [AE501685] (the Programmed Mechanical and Electrical Agreement) not cover the Water Corporation and that the Water Corporation Enterprise Agreement 2018 (the Water Corporation Agreement) will cover any former employees of Programmed Facility Management (PRA) Pty Ltd (Programmed ) who were employed by Programmed under the two transferable instruments above but are now to be employed by the Water Corporation.

[2] The Applicant applies in its capacity as a person who is the likely new employer (section 318(2)(a) of the Act).

[3] Section 318 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

(1) 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;

(a) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(b) 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

(1) 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;

(a) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(a) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(a) 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

(1) 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

[4] The application was served on The Australian Workers’ Union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the United Workers Union, whom have coverage of the transferring employees. The Commission has sought each of the Union’s view on the application and each of the Unions has advised that they support the application.

[5] The Applicant has provided a statutory declaration addressing in detail the relevant considerations in section 318 of the Act.

[6] The view of the Applicant is that the Commission should make the orders sought.

[7] Offers of employment have been made by the Water Corporation to the 152 transferring employees affected by the decision of Water Corporation to cease outsourcing a number of its operations, maintenance and asset management functions and in future have this work undertaken by Water Corporation employees.

[8] An online survey of these employees was conducted with 101 of the 152 transferring employees responding. Of the 101 transferring employees whom responded 97 indicated they want to be covered by the Water Corporation Agreement, and are satisfied that the overall terms of employment offered by the Water Corporation are substantially the same or similar to the previous employment terms and conditions with Programmed and have indicated their support for this application.

[9] Of the 97 positive employee responses, 75 are transferring employees covered by the Programmed Civil Agreement and 22 are transferring employees covered by the Programmed Mechanical and Electrical Agreement.

[10] The submissions on behalf of the Applicant and the supporting material provided have satisfied me that, acknowledging there are some pros and cons when comparing the terms and conditions of employment in the transferable instruments to the Water Corporation Agreement, overall there is no disadvantage for the transferring employees if these orders are made.

[11] 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.

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