Fair Work Act 2009_

s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Application for an order relating to instrument covering new employer and transferring employees.

[1] This matter relates to an application made by Ms Robynne Leanne Black (the Applicant).

[2] The application was lodged on the Form F40 Application for Orders in Relation to Transfer of Business. The name of the transferrable instrument to which the application relates is the Brisbane Valley Pet Care Centre and Cordelia Pet Care Centre Enterprise Agreement 2011 (the Agreement). The application is made pursuant to s.318 of the Fair Work Act 2009 (the Act).

[3] The application, as it was lodged, is unclear as to in what capacity the Applicant is applying for an Order. Question 3 of the application provides five options for an applicant to select from and the Applicant in this matter, when completing the form, has neglected to select any of the boxes.

[4] The application indicates the order sought is to:

• Extend agreement for new owner, and include new and future employees.

[5] The grounds of the application state that:

• Purchased Cordelia Pet Care Centre and have taken on 2 employees who were previously employed by Martin Verhoef so I wish to continue with the enterprise agreement.

[6] The relevant provisions of the act are set out below.

s. 318 Orders relating to instruments covering new employer and transferring employees

(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.

(2) FWA 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).

(3) In deciding whether to make the order, FWA must take into account the following:

(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;

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;

[7] On 20 February 2014, Directions were emailed to the Applicant requesting further information. Those Directions were as follows:

"The Applicant is to file in the Fair Work Commission by 4:00pm on Friday, 28 February 2014 any submissions, witness statements, evidence or documents in relation to s.318(3)(a)(ii) being the views of the employees who would be affected by the order."

[8] On 5 March 2014, my Associate sent an email to the Applicant in the following terms:

"Please find attached Directions that were issued by Deputy President Asbury in relation to the above matter on 20 February 2014. Those Directions required you to file submissions in the Fair Work Commission by 4.00pm on Friday, 28 February 2014 in support of your application.

To date no documentation has been received by this office.

You are directed to provide a written response by 4.00pm on Friday, 7 March 2014.

Should you fail to respond by the due date, the matter will be determined on the basis of the material contained on the file and your application may be dismissed.

Should you decide that you no longer wish to proceed with your application, you are requested to sign and date the attached Notice of Discontinuance and return it to this office at your earliest convenience."

[9] On 13 March 2014, my Associate contacted the Applicant to enquiry why she hadn't responded to the Directions and email of 5 March 2013. The Applicant said that she had contacted the Fair Work Ombudsman's office, who told her that all she had to do was fill in the form and it would be approved. The process was explained to the Applicant, and that further documentation was required to be filed by the Applicant to support the application.

[10] The Applicant was advised that amended Directions would be issued, giving the Applicant until Friday, 21 March 2014 to provide written submissions in support of her application. It was reiterated to the Applicant that if no response was received, the application would be dismissed through lack of documentation.

[11] No further communication of any kind has been received from the Applicant to date.

[12] Section 318(3) prescribes, when deciding whether to make the order sought or not, what matters the Fair Work Commission must take into account. I will consider each of these in turn.

The views of the new employer or a person who is likely to be the new employer

[13] The Applicant is the new employer and her view is that the Commission should make the orders they have applied for.

The views of the employees who would be affected by the order

[14] Despite several attempts to obtain further supporting material, none have been provided. The Applicant has not provided sufficient information to the Commission that would allow a finding to be made as to what the views are of the employees who would be affected by the order.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment.

[15] The Applicant has not provided sufficient information to the Commission that would allow a finding to be made as to whether the employees would be disadvantaged by the order.

If the order relates to an enterprise agreement - the nominal expiry date of the agreement.

[16] The nominal expiry date of the Agreement is 8 August 2015.

Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace.

[17] The Applicant has not addressed this issue.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer.

[18] The Applicant has not addressed this issue.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer.

[19] The Applicant has not addressed this issue.

[20] The Applicant has not addressed this issue.

[21] Section 318 of the Act provides that the Commission has discretion to make orders of the kind sought by the Applicant in this matter. Section 318(3) prescribes particular matters that the Commission must take into account when deciding whether or not to make the orders that the Applicant has sought.

[22] The onus is on the Applicant to put forward evidence and submissions on each of the matters that the Commission is obliged to consider, that will support a conclusion that the orders they seek should be made. The Applicant in this case has failed to comply with Directions to provide documentary evidence in support of the application.

[23] Considering the failure of the Applicant to make out a case that supports the making of the orders sought, I decline to make the orders sought by the Applicant. This application is now dismissed.

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