s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Application for an order relating to instrument covering non-transferring employees.

• [1] Yarra Journey Makers Pty Ltd (applicant) has made an application for orders pursuant to s 319 of the Fair Work Act 2009 (Cth) (Act). The application is made in the context of a transfer of business from KDR Victoria Pty Ltd T/A Yarra Trams (KDR Victoria) to the applicant. The applicant seeks an order in respect of the following enterprise agreements (Existing Agreements):

• • Yarra Trams Enterprise Agreement 2023 - Operations[1]
• • Yarra Trams Enterprise Agreement 2023 - Infrastructure[2]
• • Yarra Trams Enterprise Agreement 2023 - Rolling Stock, Administration, Technical & Professional[3]

"An order that in accordance with section 319(1)(b) of the Fair Work Act 2009 (Cth), that the three Existing Agreements will cover the Applicant and any new non transferring employees that it employs on or after 1 August 2024 within the coverage specified by any of the Existing Agreements."

• [3] For the reasons that follow, I am satisfied that the application should be granted.

• [4] Yarra Journey Makers has been contracted to operate Melbourne's tram network under the Yarra Trams trading name from 1 December 2024. Until this time (or a later date as agreed) the current contractor, KDR Victoria, will continue to operate the tram network and employ the relevant employees (Transferring Employees), who are covered by the Existing Agreements.

• [5] KDR Victoria and the applicant entered into a Transfer Agreement on or about 11 September 2024 which outlines the process by which the assets of KDR Victoria used for the purpose of conducting the Yarra Trams business will transfer to the applicant on or about 1 December 2024. The Transfer Agreement also governs the process by which the Transferring Employees will be offered employment with the applicant, with effect on 1 December 2024. The applicant considers that this will trigger a transfer of business within the meaning of the Act.

• [6] At the time of making this application, the applicant has not employed any non-transferring employees. However, it expects that it may need to recruit new, non-transferring employees to perform the transferring work. Absent the orders sought by the applicant, any new non-transferring employees would not be covered by the Existing Agreements, due to the operation of s 314(1)(d) of the Act.

• [7] The application is therefore made for the purposes of ensuring the Existing Agreements will cover and apply to any non-transferring employees who perform transferring work for the applicant. In the absence of an order, the appropriate modern award will instead apply to them.

• [8] The Australian Rail Tram & Bus Industry Union is covered by each of the Existing Agreements. The Association of Professional Engineers, Scientists and Managers, Australia, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union are each covered by the Yarra Trams Enterprise Agreement 2023 - Infrastructure and the Yarra Trams Enterprise Agreement 2023 - Rolling Stock, Administration, Technical & Professional. Each of the unions was served with the application and related material and provided with an opportunity to provide any responsive views to the application.[4] No material was received.

• [9] Pursuant to s 317 of the Act, the Commission may make certain orders if there is, or is likely to be a transfer of business from an old employer to a new employer. I am satisfied having regard to the uncontested evidence before the Commission[5] that there will be a transfer of business from KDR Victoria to the applicant with effect on 1 December 2024, with the result that the Existing Agreements will cover and apply to the applicant and the Transferring Employees.

• [10] In deciding whether to make the order sought, I must take into account the factors set out in s 319(3) of the Act.

The views of the new employer or a person who is likely to be the new employer and the views of the employees who would be affected by the order (s 319(3)(a))

• [11] The applicant, as the new employer, considers that the application should be granted. There are no non-transferring employees who would presently be affected by the order.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment (s 319(3)(b))

• [12] In the circumstances of this matter, the Existing Agreements already cover the Transferring Employees. The applicant submits that if the order sought is not made, any new employee will be instead covered by a modern award which would be less advantageous to the employees than the Existing Agreements.

• [13] I am satisfied that the Existing Agreements provide for more generous rates of pay than each of the applicable modern awards,[6] such that any non-transferring employees performing the transferring work will not be disadvantaged in relation to their terms and conditions of employment if the order is made. This is a matter that weighs in favour of granting the order sought.

If the order relates to an enterprise agreement - the nominal expiry date of the agreement (s 319(3)(c))

• [14] The nominal expiry date of each of the Existing Agreements is 30 June 2027. I am satisfied that this is a factor that does not weigh against the making of the order and I regard it as a neutral consideration.

Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace (s 319(3)(d))

• [15] The applicant submits, and I accept, that making the order would promote the productivity of non-transferring employees, and thereby its workplace. The effect of the order sought is that any non-transferring employees engaged by the applicant would be covered by the same terms and conditions of employment as the Transferring Employees. I accept that this is likely to reduce disputation and streamline administrative processes. The consistency in employment conditions for employees performing the same or similar work is a matter that weighs in favour of making the order.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer (s 319(3)(e))

• [16] There is no material before the Commission which demonstrates that the applicant would incur significant economic disadvantage as a result of the order being made, nor is this contended. This weighs in favour of the application.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer (s 319(3)(f))

• [17] I consider that there is no relevant synergy in this case. This is a neutral consideration.

The public interest (s 319(3)(g))

• [18] I do not consider there to be any relevant public interest considerations arising in this matter.

• [19] The considerations under s 319 of the Act that apply to the exercise of the Commission's discretion to make the order sought are either neutral or weigh in favour of making the order. Taking into account these matters and all the circumstances, I consider that it is appropriate to grant the application.

• [20] Orders giving effect to this decision are issued separately in PR781427, PR781428 and PR781443.

[5] Statutory declaration of Shannon Roma declared 22 October 2024

[6] Variously, the Professional Employees Award 2020, Passenger Vehicle Transportation Award 2020, Manufacturing and Associated Industries and Occupations Award 2020, and Clerks - Private Sector Award 2020

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