Home | Databases | WorldLII | Search | Feedback Fair Work Commission Transcripts

You are here: 

AG2013/5541, Transcript of Proceedings [2013] FWCTrans 205 (22 March 2013)

102516633601

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1047659-1

VICE PRESIDENT WATSON

AG2013/5541

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

Mission Australia
and
Australian Municipal, Administrative, Clerical and Services Union
(AG2013/5541)
Mission Australia Employment Solutions Enterprise Agreement 2012-2015

(ODN AG2012/8899)
[AE895229 Print PR526050]]




Sydney

2.09PM, FRIDAY, 15 MARCH 2013

PN1

THE VICE PRESIDENT: Can I have the appearances, please.

PN2

MR R. DAVIDSON: Good afternoon, your Honour. My name is Davidson, initial R. I'm a workplace relations consultant and I seek leave to appear for Mission Australia in this matter. Appearing with me is MS A. ELLIS. She is the national HR manager for Employment Solutions for Mission Australia.

PN3

THE VICE PRESIDENT: Thank you, Mr Davidson. There's no-one to object to your application to appear. Permission is granted. There's no-one to oppose the application either, but perhaps I should hear from you as to the submissions you wish to make.

PN4

MR DAVIDSON: Yes, and I will be brief, your Honour. This is an application under section 318 of the Fair Work Act, as you know. The order that we are seeking is that the CHOOSE employment agreement would cease to apply to transferring employees and that they would be covered by the Mission Australia Employment Solutions Enterprise Agreement.

PN5

I will give you just a brief history of this for your information, your Honour, which isn't included in the application. This goes back to November last year, where Mission Australia was approached by the operators of CHOOSE Employment Services, Choose Foundation Ltd, in order to negotiate and make arrangements to have a novation of the contract with Department of Employment and Workplace Relations, novated across to Mission Australia.

PN6

That process was completed on 15 January this year when it was all approved by DEWR, and the transfer occurred two days later, on 17 January. With that transfer we did conclude that it was a transfer of business as defined by the Fair Work Act and that the enterprise agreement covering the employees of CHOOSE Employment Services was a transferring instrument.

PN7

The employees that transferred across - and in fact all the employees transferred across to Mission Australia. They brought with them all of their leave entitlements and there was a commercial arrangement entered into with the previous operator of the business.

PN8

From that time until the application was lodged, your Honour, we went through a process of consultation with employees which included providing them with very complete information on the differences between the CHOOSE enterprise agreement and the Mission Australia enterprise agreement. We were seeking this move for two reasons: (1) so that we could have a single set of conditions that we needed to administer, which has clear efficiencies for the organisation, but also and more importantly, your Honour, to make sure that there was equity across the organisation; that we didn't have, effectively, a second class of employees operating in Mission Australia.

PN9

The key points that are relevant to the application, your Honour, are that the CHOOSE enterprise agreement is beyond its nominal expiry date; the pay rates in the Mission Australia enterprise agreement are superior to those included in the CHOOSE enterprise agreement; by transferring to the Mission Australia agreement, the employees gain access to pay increases over the next two years of the agreement, and they also have access to better leave conditions, and there's a whole lot of other enhancements which we believe vastly outweigh any of the minor reductions in their conditions.

PN10

It was put to a vote that was conducted by the Australian Electoral Company and that was an Internet based vote, and of the 42 employees who transferred to Mission Australia, 36 of them voted and all 36 voted in favour of a transfer to the Mission Australia agreement.

PN11

So in terms of the objects of that part of the Act that are set out under  section 309 , your Honour, that looks at a balance between the interests of employees and the employer, in this case we would argue that it's actually a win-win, that the employees are better off by the transfer and it's something that Mission Australia desires to do.

PN12

THE VICE PRESIDENT: Yes. Thank you for those submissions.

PN13

The application before me is an application under section 318 of the Fair Work Act for two orders relating to the industrial instruments to apply to transferring employees consequent upon the transfer of business from CHOOSE Employment to Mission Australia.

PN14

I am required to have regard to a number of factors in section 318(3) of the Act and I also have regard to the object of the part that you've alluded to, Mr Davidson, in  section 309 , although I can see in the circumstances here that there might not be an issue of protection of employees' terms and conditions given the superior terms and conditions applying under the Mission Australia enterprise agreement.

PN15

In considering the matters referred to in section 318(3) I am satisfied that the new employer and the employees support the making of the orders made. On the basis of the comparison of terms and conditions contained in the material, I am satisfied that employees would not be disadvantaged by the making of the orders.

PN16

I note that the CHOOSE enterprise agreement has passed its nominal expiry date and that it would appear to be more appropriate that the employees are covered by a more recent agreement that has a period of operation ahead of it, and in terms of the operations of the employer I can see the desirability of having a single set of terms and conditions applying to all employees and the various consequences for equity and efficiency that flow from that circumstance, and in all those circumstances I also consider it to be in the public interest that the order be made.

PN17

So for those reasons I'd propose to grant the application and make the orders in the terms sought in the application. I will issue a decision edited from the transcript in this matter and the orders will issue from my chambers at the earliest convenience. We'll now adjourn the proceedings.

<ADJOURNED INDEFINITELY [2.16PM]