ZNX Pty Ltd T/A Zinfra

[2018] FWC 6166

[2018] FWC 6166

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

ZNX Pty Ltd T/A Zinfra

(AG2018/4834)

ZNX Pty Ltd Qld Civil Enterprise Agreement 2017

Building, metal and civil construction industries
Commissioner McKinnon	MELBOURNE, 4 OCTOBER 2018

Application that transferable instrument cover non-transferring employees.

Introduction

1. ZNX Pty Ltd T/A Zinfra (Zinfra) has applied for an order under section 319 of the Fair Work Act 2009 (Act) that the ZNX Pty Ltd QLD Civil Enterprise Agreement 2017 (Agreement) will cover any non-transferring employee in classifications set out in the Agreement.

1. The Agreement was made with CLM Infrastructure Pty Ltd (CLM), a related entity of Zinfra. Following the approval of the Agreement, all employees covered by the Agreement transferred to Zinfra. In the absence of an order in the form sought, the non-transferring employees would be covered by the Building and Construction General On-site Award 2010.

The relevant legislation

1. Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

1. Section 311(1) defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.

1. In deciding whether to make orders of this kind, the Commission must take into account a range of factors set out in section 319(3) of the Act.

Consideration

1. The Agreement is an enterprise agreement approved by the Commission on 21 May 2018. It is a transferable instrument for the purposes of section 312(1)(a) of the Act.

1. I am satisfied that there has been a transfer of business between CLM and Zinfra for the purposes of section 311(1) as:

(i)the employment of employees covered by the Agreement terminated with CLM;

(ii)the employees were employed by Zinfra immediately thereafter;

(iii)their work for Zinfra is the same as the work they performed for CLM (the transferring work); and

(iv)CLM and Zinfra are related entities.

The views of the new employer and employees affected by the order

1. Zinfra has filed a statutory declaration in support of the application by Mr Ieuan Carter, Group Manager Industrial Relations. According to Mr Carter, it is the preference of Zinfra to have the Agreement apply to non-transferring employees. At the time the application was made, there were no non-transferring employees employed by Zinfra. Employees who transferred from CLM to Zinfra did not object to the application.

Whether any employees would be disadvantaged by the order

1. If the order is granted, employees will benefit from a number of more beneficial terms, including more beneficial rates of pay and daily fares allowance. I am satisfied that employees will not be disadvantaged if the application is granted. This factor weighs in favour of the application.

The nominal expiry date of the agreement

1. The nominal expiry date of the Agreement is 22 January 2021. This is a neutral consideration.

Whether the transferable instrument would have a negative impact on productivity at Zinfra

1. Zinfra says that applying the Agreement to future non-transferring employees will not have a negative impact on productivity. I am satisfied that granting the order would promote productivity and efficiency by streamlining terms and conditions of employment so that they apply in the same way to all employees performing work covered by the Agreement. This factor weighs in favour of the application.

Whether Zinfra would incur significant economic disadvantage by coverage of the Agreement

1. Zinfra submits, and I accept, that the application of the Agreement will not cause any economic disadvantage to it. This factor is a neutral consideration.

Degree of business synergy between the Agreement and other workplace instruments

1. There is limited business synergy between the Award and the Agreement, as the Agreement is tailored to Zinfra’s workforce. Application of the Agreement to all employees will result in greater business synergy between the Agreement and conditions in the workplace. As noted above, it will also reduce the opportunity for conflict relating to employees receiving different terms and conditions of employment while performing the same work. This factor weighs in favour of the application.

The public interest

1. There is nothing before me to suggest that granting the application will adversely affect the public interest. I am satisfied that it is not contrary to the public interest to make the order sought.

Conclusion

1. Having regard to each of the factors set out above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.

1. An order [PR701042] will be issued separately to this decision.

COMMISSIONER

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<AE428434  PR701041>