West Australian Newspapers Limited T/A West Australian Newspapers Limited
[2025] FWC 455
•14 FEBRUARY 2025
| [2025] FWC 455 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
West Australian Newspapers Limited T/A West Australian Newspapers Limited
(AG2025/160)
| DEPUTY PRESIDENT O'KEEFFE | PERTH, 14 FEBRUARY 2025 |
Application for orders relating to a transferrable instrument – orders granted
Background
On 24 January 2025, West Australian Newspapers Limited (Applicant) made an application to the Fair Work Commission (FWC) pursuant to section 318 of the Fair Work Act 2009 (Cth) (FW Act).
The Application relates to the employment conditions of Ms Jessica Hannah Evensen, who was formerly employed as a reporter by the Community Newspaper Group Limited (CNG). CNG and the Applicant are related entities in the Seven West Media Group. Ms Evensen transferred her employment from CNG to the Applicant on 2 December 2024, continuing in the role of reporter.
The Applicant submitted that as it and CNG are related entities, and the work performed by Ms Evensen for the Applicant is the same or substantially the same as the work performed for CNG, that the Community Newspaper Group Limited Editorial Enterprise Agreement 2020 (the CNG Agreement) is a transferable instrument in accordance with s312 of the FW Act. As such, as per s313 of the FW Act, the CNG Agreement would cover Ms Evensen’s employment with the Applicant.
In lieu of this, the Applicant seeks an order under s318(1)(a) that the CNG Agreement not cover MS Evensen’s employment, and an order under s318(1)(b) that it be covered instead by the West Australian Newspapers Limited Editorial Enterprise Agreement 2023 (the WAN Agreement).
Legislation
Section 318 of the FW Act provides:
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
The application has been made by the Applicant, who is the new employer as per s318(2)(a).
Section 318(3) of the FW Act, as set out above, requires that I take into account the following issues when deciding whether to make the order sought:
The views of the new employer and the employees who would be affected by the order
The Applicant submitted that the effect of the orders sought would provide a number of benefits for its operations.
The Applicant lodged with its paperwork a statutory declaration signed by Ms Evensen. In that statutory declaration, Ms Evensen notes that she is aware of the effects of the orders sought by the Applicant, highlights the advantages to herself of moving to the WAN Agreement and indicates her support for the application.
I am satisfied that the proposed application is supported by both the Applicant and Ms Evensen. This weighs in favour of granting the order.
Whether any employees would be disadvantaged by the order
The Applicant noted some reductions in conditions for Ms Evensen that would result from the orders, but also highlighted a number of significantly increased benefits. Ms Evensen indicated that she believed that the overall result would be positive in terms of her conditions. Having considered the reductions and increases, I find that I concur with the Applicant and Ms Evensen that taking the package as a whole, there is no disadvantage to Ms Evensen. This weighs in favour of granting the orders.
The nominal expiry date of the agreement
The nominal expiry date of the CNG Agreement was 3 February 2023 and the Applicant notes that there are no plans for a replacement Agreement to be negotiated. The nominal expiry date of the WAN Agreement is 30 June 2026. Taken together, I find this weighs in favour of making the orders.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant submitted that having Ms Evensen continue under the CNG Agreement creates a two-tiered system of benefits and therefore results in some administrative burdens. While this appears to be a common argument from employers, I am not persuaded that the burdens are such that they would cause any appreciable decline in productivity. I therefore find this factor to be neutral when considering the merits of making the orders.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
The Applicant submitted that it would incur costs associated with operational inefficiencies resulted from two sets of administrative arrangements. Again, while this is a common argument, I am not persuaded that the impact is as severe as to meet the test of significant economic disadvantage. I therefore find this factor to be neutral when considering the merits of making the orders.
The degree of business synergy between the transferable instrument and any workplace
instrument that covers the new employer
The Applicant submitted again that significant administrative difficulties would result from Ms Evensen continuing to have her conditions covered by the CNG Agreement and drew my attention to a number of different employment conditions for which it would have to make provision in its systems and policies. Once again, I find that the burden is unlikely to be so onerous as to create any practical difficulties. I therefore find this factor to be neutral when considering the merits of making the orders.
The public interest
The Applicant submitted that the proposed order would be in the public interest due to a range of factors including being consistent with the objects of the FW Act and facilitating better career options for Ms Evensen.
The requirement imposed by the FW Act at s318(3)(g) is to take into account the public interest. I note that this requirement is expressed differently to sections of the FW Act such as 189(2) where the FWC needs to be satisfied that a proposed action is not contrary to the public interest. Nevertheless, I do not find that the requirement imposed by s318(3)(g) is that the proposed order must be in the public interest, which is a higher test than not contrary to the public interest (see Re: Top End Consulting Pty Ltd[1]). In this instance, I do not accept the Applicant’s submissions that the proposed order is in the public interest. However, I do not find that the proposed order would be contrary to the public interest and so this factor is neutral when considering the merits of making the orders.
Conclusion
Having considered the items set out in s318(3) of the FW Act, I am satisfied that it is appropriate for me to make the proposed consent orders. An order to this effect will issue separately.
DEPUTY PRESIDENT
[1] Re: Top End Consulting Pty Ltd[2010] FWA 6442 [46].
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