AG2015/2930, Transcript of Proceedings [2015] FWCTrans 392 (1 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052055

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COMMISSIONER BLAIR

AG2015/2930

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

Application by Toyota Motor Corporation Australia Limited

Melbourne

11.33 AM, MONDAY, 22 JUNE 2015

PN1

THE COMMISSIONER: Good morning. Appearances, please.

PN2

MR L LEVINE: Good morning, Commissioner. May it please the Commission, my name is Levine, Leon. I seek permission to appear on behalf of the parties.

PN3

THE COMMISSIONER: Thank you, Mr Levine. This is an application under section 318 for an order relating to instruments covering a new employer and transferring employees. Mr Levine?

PN4

MR LEVINE: Thank you, Commissioner. Would you like me to go through all the elements of the legislation or any particular - - -

PN5

THE COMMISSIONER: I've read the application.

PN6

MR LEVINE: Yes.

PN7

THE COMMISSIONER: I note that the documentation says the transferring employees have been consulted.

PN8

MR LEVINE: Yes.

PN9

THE COMMISSIONER: The question in my mind was how did we come to the view that they had accepted they would be transferred. As I see it, the transfer would provide for comparable, if not in some circumstances better, terms and conditions. I think there are one or two that may not be comparable, but it is balanced in favour of the transfer.

PN10

MR LEVINE: Yes.

PN11

THE COMMISSIONER: Yes.

PN12

MR LEVINE: Commissioner, as to the first point, they certainly were consulted with by Ms Romano over here. She got the individual views as to whether they would in fact agree to an order of this kind being made. Universally, they all agreed to it. As part of the submission to them, they were given a comparison chart, which is in your papers.

PN13

THE COMMISSIONER: Yes.

PN14

MR LEVINE: Which identifies the differences between the current EBA which applies to them and the enterprise bargaining agreement which will apply to all of them, with one exception, should they transfer across. As for the comparability between the two sets of arrangements, I think it's a universal truism that the enterprise bargaining agreement which would apply to all of them, with one exception, were they to come across, offers them universally much better terms and conditions than the one they currently are on.

PN15

I can also, Commissioner, point you to attachment H, which is a salary comparison between the salary arrangements which they're currently on. That, Commissioner, is a moment in time assessment. It is anticipated that the transfers will take place in around a year's time.

PN16

THE COMMISSIONER: Yes.

PN17

MR LEVINE: But we make an application now in order to secure their employment, because they are key people in the business going forward.

PN18

THE COMMISSIONER: You will see at the back there is a whole range - attachment G - of signed employee declaration forms.

PN19

MR LEVINE: Yes.

PN20

THE COMMISSIONER: So that answers the first question.

PN21

MR LEVINE: Yes.

PN22

THE COMMISSIONER: You said attachment - - -

PN23

MR LEVINE: Attachment H is the difference between their current salary - and this is one as of 29 May this year - versus what their salary would be were they to be currently employed by Toyota Motor Corporation Australia. In all cases it's more. In some cases it's substantially more.

PN24

THE COMMISSIONER: Yes.

PN25

MR LEVINE: The one minor difference is the top one, Mr Girolami.

PN26

THE COMMISSIONER: Multimedia engineering.

PN27

MR LEVINE: Yes. He is marginally worse off, but by the time he transfers across - because under the TMCA EBA, people at university get a 3 per cent wage increase. It's locked in - he will be ahead.

PN28

THE COMMISSIONER: Ahead.

PN29

MR LEVINE: He will be ahead. That doesn't take account of other benefits which would be available to him under the enterprise bargaining agreement and others like annual leave loading, like extra pay for working overtime, et cetera. In a universal sense, every single one of these employees will be better off if the orders were to be made and they were to join Toyota Motor Corporation.

PN30

THE COMMISSIONER: Right. Now, in looking at the Toyota Australia Workplace Agreement (Altona) 2015, one thing that struck me is that it refers to the union and its members, but I couldn't find - unless it is hidden somewhere - the definition of the union.

PN31

MR LEVINE: Sorry, Commissioner, are you talking about the Toyota Motor Corporation - - -

PN32

THE COMMISSIONER: I've got the one that has been attached to the application.

PN33

MR LEVINE: There are two agreements. The first is the current enterprise bargaining agreement which applies to them and then there is the Altona one.

PN34

THE COMMISSIONER: Right. The Altona one refers to the union and its members. I couldn't find where the union was defined. It refers to "FVIU"; the Federation of Vehicle Industry Unions.

PN35

MR LEVINE: My apologies. It's on page 117 in a glossary at the back. It refers to the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

PN36

THE COMMISSIONER: Yes, I've got that. Thanks. Now, under 318, it goes to the order. It refers to, in (2)(c):

PN37

If the application relates to an enterprise agreement, an employee organisation that is, or is likely to be, covered by the agreement.

PN38

MR LEVINE: Yes.

PN39

THE COMMISSIONER: It then goes to (3), which you have dealt with in (3)(a)(ii) and you've dealt with (b).

PN40

MR LEVINE: Yes.

PN41

THE COMMISSIONER: You've dealt with (c). You've dealt with all the provisions actually.

PN42

MR LEVINE: Yes.

PN43

THE COMMISSIONER: So what more do I need to know?

PN44

MR LEVINE: There is only one issue which I am duty‑bound to draw to your attention, Commissioner. That is, you might have noticed that part of the offers to the employees state that the offers of employment to them are conditional on this Commission making the order sought.

PN45

THE COMMISSIONER: Yes.

PN46

MR LEVINE: You may or may not be aware, there are a couple of decisions by your brethren which effectively say that - - -

PN47

THE COMMISSIONER: Not my exclusive brethren.

PN48

MR LEVINE: Yes - which are to the effect that the making of a conditional offer precludes the Commission from making the order sought. Now, I'm aware of and I've personally had other applications where the Commission hasn't taken a similar view. I would respectfully suggest that those two decisions - and I can take you through them - are, I would say, not necessarily correct.

PN49

The headline issue in those cases - and again I've got copies of them. I can show them to you, but they are effectively saying that in circumstances where - the Commission needs to find as a jurisdictional prerequisite that there will be transferring employees. Unless the Commission is satisfied that there will be transferring employees, it can't then make the order sought.

PN50

Now, we would say in this case that's not the test that needs to be adopted. The Commission needs to be satisfied that there will or will likely be a transfer of business. That means going through all the requirements of section 311 and satisfying itself that all those elements of 311 are likely to be satisfied. We would say going through each of those elements - in 311(1), it is likely that the employment of the employees will terminate. It is likely, because these employees have been made offers and have accepted the offers, that they will become employed.

PN51

Thirdly, on the basis of what Ms Romano has said in her statutory declaration, it is likely that the work they perform will be the same or substantially the same. Fourthly - and this is a certainty - the two entities, the outgoing employer and the incoming employer, are related. That's a certainty.

PN52

THE COMMISSIONER: Yes.

PN53

MR LEVINE: We would say the Commission can be satisfied that there is a likelihood that there will be a transfer of business.

PN54

THE COMMISSIONER: Well, it's more than likely, isn't it? Wouldn't it be a fait accompli?

PN55

MR LEVINE: You would have thought.

PN56

THE COMMISSIONER: Yes, of course.

PN57

MR LEVINE: Now, in case you want the reference to those decisions, I can - - -

PN58

THE COMMISSIONER: I'm not here to frustrate the - - -

PN59

MR LEVINE: Thank you, Commissioner.

PN60

THE COMMISSIONER: Have you got a draft order?

PN61

MR LEVINE: I do. I think it is attached to the application.

PN62

THE COMMISSIONER: I'm sure it is, along with everything else. If you go into the order sought - - -

PN63

MR LEVINE: Sorry, one other point of clarification, as well, is there is one employee - - -

PN64

THE COMMISSIONER: Yes, you've mentioned that.

PN65

MR LEVINE: - - - whose name is Norika Faumi, who is covered by her current employer's enterprise bargaining agreement, but when she joins Toyota Motor Corporation Australia, will not be covered by any of the classifications in the Toyota Motor Corporation enterprise bargaining agreement. You will see part of the order sought is that the enterprise bargaining agreement which currently applies to her, not apply to her in her new employment and that she not otherwise be covered by any enterprise bargaining agreement.

PN66

You might have noticed, as well, that in her case she has accepted the offer of employment. If I can take you to attachment H again, which is the salary comparison, she is the last person on that list.

PN67

THE COMMISSIONER: Yes.

PN68

MR LEVINE: You will see that there is a very good reason why she has, I think, decided to accept the offer, because her income will go up significantly.

PN69

THE COMMISSIONER: About 26,000, approximately.

PN70

MR LEVINE: Yes, so she has also consented to the arrangement where the current enterprise bargaining agreement won't apply to her and she will effectively be enterprise bargaining agreement free when she joins Toyota Motor Corporation Australia. As for the orders, I have a copy here.

PN71

THE COMMISSIONER: Is that any different to the draft order that I have here?

PN72

MR LEVINE: No, it's exactly the same.

PN73

THE COMMISSIONER: Yes, okay. The order is to come into effect from when?

PN74

MR LEVINE: Well, I think it can come into effect today.

PN75

THE COMMISSIONER: Yes.

PN76

MR LEVINE: The employees won't be transferring across for a while, but it can come into effect today, yes.

PN77

THE COMMISSIONER: Yes, okay. 22 June. Is there anything else?

PN78

MR LEVINE: That's it. Thank you, Commissioner.

PN79

THE COMMISSIONER: All right. I am satisfied that the requirements under section 311 have been met. I think you have gone through it in detail, Mr Levine, so I am happy with that. As I indicated, I read the reasons for the application and I have indicated that in the Commission's view the transfer is a fait accompli. It is not a position that is likely to occur; it will occur.

PN80

The requirements of the Act, I am satisfied, have been met and the order will be issued and will be effective from 22 June 2015. We will stand adjourned.

ADJOURNED INDEFINITELY [11.48 AM]