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

Application for an order relating to instruments covering new employer and transferring employees -Orders made

• [1] This decision concerns an application made by Capgemini Australia Pty Limited (Capgemini) for an order pursuant to section 318(1)(a) of the Fair Work Act 2009 (FW Act). The application was made in circumstances where there is, or there is likely to be, a transfer of business within the meaning of Division 2 of Part 2-8 of the FW Act between the Bank of Queensland Limited trading as the Bank of Queensland (BOQ) and Capgemini. The BOQ Enterprise Agreement 2022 (the Agreement) is a transferable instrument within the meaning of Division 2 of Part 2-8 of the FW Act. The application concerns four transferring employees within the meaning of Division 2 of Part 2-8 of the FW Act. Namely, Mr Anthony Webb, Mr Luca Della Via, Mr Siddhart Rai, and Mr Jayce Ese (the Transferring Employees).

• [2] The application was supported by a witness statement of Ms Jessica Beziudenhout (Head of AU & NZ HR Services - Director, Capgemini). The application and Ms Beziudenhout's statement was served on the Transferring Employees, and the Finance Sector Union of Australia, which was a bargaining representative for, and covered by, the Agreement.

• [3] The matter was listed for a hearing before me on 15 December 2025. Ms Harriet Eager appeared for Capgemini with permission granted under section 596(2)(a) of the FW Act. Each of the Transferring Employees attended the hearing and confirmed their support for the order being made. At the hearing, I was told that the Transferring Employees had ceased employment with the BOQ and commenced employment with Capgemini that day, 15 December 2025. At the conclusion of the hearing, I indicated that I would make an order that day and would provide reasons later. An order was made on 15 December 2025. Very briefly, the matters that the Fair Work Commission must take into account in deciding whether to make the order are set out at section 318(3) of the FW Act. With respect to each such matter: the views of the new employer, Capgemini, are that it wants the order to be made (s.318(3)(a)(i); the views of the Transferring Employees are that they each support the order being made (s.318(3)(a)(ii); Based on the matters set out in Ms Beziudenhout's statement, I am satisfied that the employees will not be disadvantaged by the order in relation to their terms and conditions of employment. In particular, I note that the specified beneficial terms in the Agreement will be preserved and maintained through a legally enforceable contract between each Transferring Employee and Capgemini (s.318(3)(b)); The nominal expiry date of the Agreement is 6 July 2026 (s.318(3)(c)); Capgemini submitted that the transferrable instrument would have a negative impact on the productivity of its workplace. I do not accept that. I accept that the transferrable instrument would be an added administrative burden especially as it concerns the payroll and human resources function. However, I do not think these are matters can properly be said to impact on productivity (s.318(3)(d)); There was no material before me that demonstrated Capgemini would incur significant economic disadvantage as a result of the transferrable instrument covering it (s.318(3)(e)); I accept Capgemini's submissions as to business synergy (s.318(3)(f)); I do not consider this application engages the public interest in any way. It concerns Capgemini and four employees (s.318(3)(g)).

[4] Having taken into account each of the matters set out at section 318(3) of the FW Act and weighed those matters both individually and collectively, I am satisfied that the order should be made. The order was made on 15 December 2025.

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