Crown Sydney Gaming Pty Limited v United Workers' Union

JAGOT J: 1 These reasons for judgment explain why I made a declaration on 1 February 2022 as follows: THE COURT DECLARES THAT: The employment of the Transferring Employees by Crown Sydney Gaming Pty Ltd will not result in a transfer of business within the meaning of s 311 of the Fair Work Act 2009 (Cth). DEFINITION Transferring Employees means Dealers, Area Managers and Security Officers currently employed by one of Crown Melbourne Limited or Burswood Resort (Management) Limited, to whom Crown Sydney Gaming Pty Ltd has offered employment.

Background 2 The applicant, Crown Sydney Gaming Pty Limited (Crown Sydney), is a subsidiary of Crown Resorts Limited (Crown). Crown has two other subsidiaries which also operate gaming and hotel facilities in Melbourne (Crown Melbourne) and Perth (Crown Perth). 3 In December 2020, Crown Sydney opened a new complex in Sydney and is now preparing to operate private, "members-only" gaming facilities under a restricted gaming licence. 4 In order to obtain experienced staff to service its new gaming facilities in Sydney, Crown Sydney has offered employment to 86 dealers, area managers and security officers currently employed at Crown Melbourne and Crown Perth (transferring employees). Each transferring employee is currently covered by one of three enterprise agreements. 5 Crown Sydney seeks a declaration that the employment of the transferring employees would not constitute a "transfer of business" within the meaning of s 311 of the Fair Work Act 2009 (Cth) (the Act). If there is a "transfer of business", s 313 of the Act would operate to apply the existing enterprise agreements to the transferring employees on their employment by Crown Sydney in Sydney. 6 The respondent, the United Workers' Union (UWU), is the registered organisation named in each of the relevant enterprise agreements. The UWU filed a submitting appearance other than with respect to costs. No costs order is sought. 7 I accept that the UWU is a proper respondent to the proceeding. Further, Crown Sydney informed the transferring employees about this proceeding. No transferring employee sought to be heard. Details about the hearing were also published on the Court's website. When the matter was called for hearing, I asked whether any person other than Crown Sydney wished to be heard and there was no response. 8 For the reasons given below, the employment of the transferring employees by Crown Sydney would not constitute a transfer of business within the meaning of s 311 of the Act. The declaration sought should be made, noting the discussion in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 and that: (1) Crown Sydney was initially uncertain as to the proper course of action to take, and proposed to apply to the Fair Work Commission for an order under s 318(1) of the Act that the existing enterprise agreements not apply to the transferring employees; (2) UWU initially opposed the making of the declaration before entering the submitting appearance; (3) Crown Sydney's offer of employment to the transferring employees is conditional on the declaration being made; and (4) the application or not of the existing enterprise agreements to the transferring employees is of direct commercial and legal importance to Crown Sydney and the transferring employees. They should have certainty provided to them in this regard.

Statutory provisions 9 Part 2-8 of Chapter 2 of the Act provides for the transfer of rights and obligations under enterprise agreements if there is a transfer of business from an old employer to a new employer. 10 Section 311 of the Act sets out the circumstances in which this transfer of business occurs: 311 When does a transfer of business occur Meanings of transfer of business, old employer, new employer and transferring work (1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied: (a) the employment of an employee of the old employer has terminated; (b) within 3 months after the termination, the employee becomes employed by the new employer; (c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer; (d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6). Meaning of transferring employee (2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business. Transfer of assets from old employer to new employer (3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between: (a) the old employer or an associated entity of the old 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 employer, or the associated entity of the old employer, owned or had the beneficial use of; and (d) that relate to, or are used in connection with, the transferring work. Old employer outsources work to new employer (4) There is a connection between the old 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 employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer. New employer ceases to outsource work to old employer (5) There is a connection between the old employer and the new employer if: (a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and (b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer. New employer is associated entity of old employer (6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer. 11 Section 313 of the Act provides that, if a transfer of business has occurred under s 311, the transferable instrument (defined under s 312 as including an enterprise agreement) which covered the old employer and transferring employee will cover the new employer (ie, the business to which the transfer was effected) in relation to the transferring work. 12 Section 318 of the Act enables the Fair Work Commission to make orders that: (a) a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee, does not, or will not, cover the new employer and the transferring employee, or (b) an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Transfer of business? 13 The key provision which is not satisfied in the present case is s 311(1)(c) of the Act (this provision requires that the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer). It follows that there will be no transfer of business as provided for in s 311(1) of the Act. 14 The reasons for this are that: (1) the "work" an employee performs or performed is not confined to the mere carrying out of tasks in an abstract sense. Depending on the circumstances, the conception of the "work" an employee performs or performed for the purposes of s 311(1)(c) may include the location at which the work is performed and other aspects related to the performance of the tasks comprising the job or work; (2) if the tasks the transferring employees will perform for Crown Sydney will be the same or substantially the same as the tasks they performed for Crown Melbourne and Crown Perth, the transferring employees will be performing these tasks for Crown Sydney in Sydney in a new facility in a new business enterprise. Further, the existing facilities in Melbourne and Perth will continue to be operated by Crown Melbourne and Crown Perth respectively; (3) this is not a case where, for example, an employer proposes to transfer employees within an existing business from one location to another proximate location where the employees continue to carry on the same work in the existing business from the new proximate location. In such a case, the location at which the work is and was performed may have no bearing upon the characterisation of the work as the same or substantially the same; (4) Crown Melbourne and Crown Perth have no entitlement to direct the transferring employees to continue to perform their work for a new employer, Crown Sydney, in the new location. This supports the characterisation of the work to be performed for Crown Sydney in Sydney as work which is not the same or substantially the same as the work they perform for Crown Melbourne and Crown Perth; and (5) the facilities at Crown Sydney will not be available to the general public and, accordingly, the facilities and tasks to be performed at Crown Sydney will be different from those performed in Melbourne and Perth. 15 It follows that the proposed offer of new contracts of employment to the transferring employees does not involve any transfer of business within the meaning of s 311(1) of the Act. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.