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

• [1] West Australian Newspapers Limited (WAN) has made an Application (Application) for an order pursuant to section 318 of the Fair Work Act 2009 (Cth) (FW Act). The Application seeks an order that the West Australian Newspapers Limited Editorial Enterprise Agreement 2023 (WAN Agreement) and not the West Australian Regional Newspapers (Editorial) Enterprise Bargaining Agreement 2008 (Regional Agreement) to cover Mr Oliver John Lane (Lane) and WAN during his employment with WAN (Orders).

• [2] The WAN Agreement was made pursuant to s.185 of the FW Act and has a nominal expiry date of 30 June 2026. The parties to the WAN Agreement are WAN and employees of WAN undertaking work in the industry of journalism excluding employees engaged in executive positions, production employees, employees editing regional newspapers and other specified roles. The Media, Entertainment and Arts Alliance (MEAA) are covered by the WAN Agreement.

• [3] The Regional Agreement was made pursuant to s.185 of the FW Act. The Regional Agreement passed its nominal expiry date on 20 June 2017. The parties to the Regional Agreement are the Albany Advertiser Pty Ltd, Geraldton Newspapers Pty Ltd and South West Printing and Publishing Company Ltd (South West Printing) and their respective employees are employed in respect to all the work in the various engagements in the industry of journalism with the exception of editors and advertorial writers.

• [4] On 2 October 2023, Mr Lane commenced employment with South West Printing as a Reporter. In January 2025, Mr Lane accepted an offer to transfer his employment from South West Printing to WAN with effect from 13 January 2025. Since the transfer, Mr Lane has performed the role of a Reporter for WAN.

• [5] Pursuant to section 313 of the FW Act, the Regional Agreement will cover WAN and Mr Lane if WAN and South West Printing are related entities and if within three months of the termination his employment with South West Printing, Mr Lane is employed by WAN to perform work which is the same or substantially the same as the work Mr Lane performed for South West Printing.

• [6] WAN asserts that it and South West Printing are associated entities within the meaning given by section 50AAA of the Corporations Act 2001 (Cth) and that the work it proposed that Mr Lane performs for WAN is substantially the same as the work he performed for South West printing.

• [7] The Application was supported by a statutory declaration made by Mr Lane.

• [8] Section 318(3) sets out the matters which the FWC must take into account when deciding to make the order sought by WAN as follows:

"318 Orders relating to instruments covering new employer and transferring employees

(3) In deciding whether to make the order, the FWC 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;

(g) the public interest."

• [9] WAN has standing pursuant to section 318(2) of the FW Act to make the Application in its capacity as the new employer of Mr Lane.

• [10] WAN have made the Application to ensure equity and improve efficient by ensuring consistency in the terms and conditions of employees it engages as Reporters.

• [11] Mr Lane has filed a statutory declaration confirming that he supports the Application indicating that he believes that he will benefit from the Orders being made.

• [12] In the Application, WAN identified the following disadvantages to Mr Lane of the Orders being made:

1. a reduction in Mr Lane's potential maximum redundancy entitlement from 52 weeks' pay to 16 weeks' pay;
2. the loss of Mr Lane's eligibility to 6 weeks of employer provided paid parental leave for primary caregivers following 3 years of continuous service;
3. a reduction in Mr Lane's notice period from 6 weeks to 4 weeks;
4. the loss of Mr Lane's entitlement to two weeks' rental or billeted accommodation if required to transfer to another town or city for work;
5. the loss of Mr Lane's entitlement to a 10% shift penalty when rostered to work part of a shift between 6:00am and 7:00am or 6:00pm and 8:30pm; and
6. the loss of Mr Lane's entitlement to a 15% shift penalty when rostered to work part of a shift between 8:30pm and 6:00am.

• [13] However, WAN also identified a number of advantages to Mr Lane of the Orders being made most notably an entitlement to progress to the next band resulting in an increase in renumeration.

• [14] The nominal expiry date of the Regional Agreement is in 2017 and there are no plans to negotiate a replacement Agreement. The WAN Agreement was registered in 2023 and therefore has more current terms and conditions of employment.

• [15] Subsection 318(3)(d) of the FW Act requires the FWC to take into account whether the transferable instruments would have a negative impact on the productivity of the new employer's workplace.

• [16] WAN say that there is no business synergy between the agreements and that if the Orders are not granted it will create significant administrative difficulties for WAN and would be operationally inefficient.

• [17] WAN identified a number of grounds as to why the Orders would be in the public interest including that:

1. Mr Lane consents to the Orders being made.
2. The WAN Agreement was more recently registered and contains superior terms and conditions of employment.
3. The Orders sought are consistent with the objects of the FW Act because they will promote productivity within WAN's business, provide for terms not inconsistent with safety nets and reduce inefficiencies.
4. The transfer of employment will provide Mr Lane with improved advancement opportunities.

• [18] There is nothing to suggest that the Orders would be contrary to the public interest.

• [19] In light of the above, I am satisfied that it is appropriate to make the order sought by WAN. An order to this effect will be issued with this decision.[1]

[1] PR785959.

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