Fair Work Act 2009_

s 768BA - Application for an order about coverage for transferring employees under a state instrument

Application for an order about coverage for transferring employees under a State instrument.

[1] This is an application filed by Transit (NSW) Services Pty Ltd (the 'applicant') which seeks orders from the Fair Work Commission (the 'Commission') pursuant to s 768BA(2)(b)(ii) of the Fair Work Act 2009 (the 'Act') that the greenfields agreement known as the Transit (NSW) Services Pty Ltd and the Transport Workers' Union of Australia Fair Work Agreement 2013 [AE402578] (the 'Agreement') apply to employees of the applicant to the exclusion of the Western Sydney Buses Bus Operators' Transitway Enterprise (State) Award 2011 (the 'State Award'). I note that the Agreement was approved by the Commission on 11 July 2013; See: Transit (NSW) Services Pty Ltd [2013] FWCA 4974.

[2] S 768BA of the Act is set out as follows:

'768BA FWC orders about coverage for transferring employees

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee's re-employment time covers, or will cover, the transferring employee.

(2) The FWC may make an order under subsection (1):

(i) a transferring employee or an employee who is likely to be a transferring employee;

(ii) the new employer or a person who is likely to be the new employer;

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement - an employee organisation that is, or is likely to be, covered by the agreement.

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(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 a copied State employment agreement or an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the transferring employee's re-employment time;

[3] In the Application for Orders in Relation to Transfer of Business, Mr D Ey, Solicitor said that the applicant had been successful in the tendering process of the New South Wales Government in relation to the operation of public passenger bus services in Sydney in 'Region 3'. The applicant had entered into a contract with Transport for New South Wales commencing in October 2013. Mr Ey went on to say that the bus service in part of Region 3 was currently operated by Western Sydney Buses and that the applicant would be offering employment to existing employees of Western Sydney Buses. These employees would be transferring employees for the purposes of Division 2 of Part 6-3A of the Act. Mr Ey also said that the transferring employees would not suffer any disadvantage in relation to their terms and conditions of employment (s 768BA(3)(b) and said that, conversely, the applicant would suffer economic disadvantage if the copied State Award continued to cover the transferring employees (s 768BA(3)(e)). He further submitted that the granting of the application would be in the public interest (s 768BA(3)(g))

[4] Division 2 of Part 6-3A of the Act is as follows:

'Division 2 - Copying terms of State instruments when there is a transfer of business

This Division sets out when there is a transfer of business from the old State employer to the new employer.

(1) There is a transfer of business from a non-national system employer that is a State public sector employer of a State (the old State employer) to a national system employer (the new employer) if the following requirements are satisfied:

(a) the employment of a person who is a State public sector employee of the old State employer has terminated;

(b) within 3 months after the termination, the person becomes employed by the new employer;

(c) the work (the transferring work) the person performs for the new employer is the same, or substantially the same, as the work the person performed for the old State employer;

(d) there is a connection between the old State employer and the new employer as described in subsection (2), (3) or (4).

Transfer of assets from old State employer to new employer

(2) There is a connection between the old State employer and the new employer if, in accordance with an arrangement between:

(a) the old State employer or an associated entity of the old State employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old State employer, or the associated entity of the old State employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

Old State employer outsources work to new employer

(3) There is a connection between the old State employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old State employer, or an associated entity of the old State employer_,_ has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer is an associated entity of old employer

(4) There is a connection between the old State employer and the new employer if the new employer is an associated entity of the old State employer when the transferring employee becomes employed by the new employer.

768AE Meaning of transferring employee, termination time and re-employment time

(1) The person referred to in paragraph 768AD(1)(a) is a transferring employee in relation to the transfer of business.

(2) The termination time of a transferring employee is the start of the day the employment of the employee is terminated by the old State employer.

(3) The re-employment time of a transferring employee is the start of the day the employee becomes employed by the new employer.'

[5] The applicant relied on an affidavit of Mr M Kent, General Counsel of the applicant. He substantially repeated the contents of the application and went on to say that he understood that Mr Clint Feuerherdt, CEO of the applicant and Mr Graeme Legh, Business Development Manager of the applicant, had met with Mr Chris Preston of the Rail Tram and Bus Union of New South Wales (RTBU) and Mr Neville Trinder, the RTBU Delegate for the transferring employees. At the meeting, the applicant set out for the RTBU officials the pros and cons of working under the Agreement rather than the State Award. The applicant also provided a copy of the Agreement to the RTBU, and copies were circulated amongst the transferring employees. The applicant also invited the transferring employees to any of five briefing sessions conducted. Mr Preston met with the employees and invited them to complete affidavits in support of the application. 29 of these were received by the Commission (s 768BA(3)(i)). Mr Kent also said that if the applicant was required to apply the State Award, it would have negative effects on productivity (s 768BA(3)(d)) and business synergy (s 768BA(3)(f)). Mr Kent said lastly that it would be in the public interest to grant the application as the Agreement had been negotiated between the applicant and the Transport Workers' Union (TWU) in order to achieve consistency in the employment terms and conditions for all those who work under it (s 768BA(3)(g)).

[6] At a hearing of the application on 3 September 2013, Mr D Ey, Solicitor appeared with Mr M Kent for the applicant. Mr C Preston and Mr N Trinder appeared for the RTBU and Mr A Guy for the Transport Workers' Union of Australia (TWU) (collectively, the 'Unions'). Mr Ey affirmed the contents of the application and explained that the State Award was still in place. Mr Kent said that there were approximately fifty employees of Western Sydney Buses who were willing to accept offers of employment with the applicant. Mr Preston said that his members had directed him to obtain an acceptable offer from the applicant and that the RTBU did not oppose the application. Mr Guy submitted that this was matter was largely one for the RTBU and that the TWU appeared only in an observing capacity.

[7] Having considered the applicant's application, and the thirty statutory declarations provided with the application, I have decided to grant the orders sought by the applicant. In doing so, I have taken into account all of the statutory requirements under s 768BA(3) of the Act. Consequential orders will be published contemporaneously with this decision.

Printed by authority of the Commonwealth Government Printer