DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Amplitel Pty Ltd
(AG2021/8087)

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

[1] Amplitel has made an application under s.319 of the Fair Work Act 2009 (Act) for orders that the Telstra Enterprise Agreement 2019 - 2021 (Agreement) and the Telstra Award 2015 (Award) cover non-transferring employees as defined in s.314(2) of the Act who perform, or are likely to perform, the transferring work for Amplitel as defined in s.311(1) of the Act.

[2] Following a procedural mention, the Commission received evidence filed on behalf of Amplitel which is summarised in the following paragraphs.

[3] As a consequence of the sale of a substantial interest in Telstra Corporation Limited (TCL)’s mobile tower business, completed on 1 September 2021, Amplitel will operate the mobile tower business. Amplitel is an associated entity of TCL because they are related bodies corporate as defined at s.12 of the Act and s.50AAA of the Corporations Act 2001 (Cth).

[4] Amplitel has made unconditional offers of employment to TCL employees who are presently covered by the Award and employed in classifications under the Agreement (Transferring Employees). The Transferring Employees will cease employment with TCL and commence employment with Amplitel within three months (on or around 9 December 2021) and will perform the same, or substantially the same, work (Transferring Work).

[5] Amplitel has not yet engaged any new employees to perform the Transferring Work (Non-Transferring Employees). Amplitel is not covered by an enterprise agreement or named employer award but there are three industrial instruments (the Telecommunications Award 2020, the Commercial Sales Award 2020 and the Professional Employees Award 2020) which would cover any Non-Transferring Employees in performance of the Transferring Work.

[6] Amplitel seeks orders that the Agreement and the Award cover any Non-Transferring Employees to provide a “uniform baseline of terms and conditions” for all of its employees performing the same or substantially the same work and to reduce the complexity and burden of administering conditions under four different industrial instruments.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the CPSU, the Community and Public Sector Union (CPSU) and Professionals Australia (formerly known as the Association of Professional Engineers, Scientists and Managers, Australia or APESMA) (collectively, the Unions) are covered by the Agreement and represent Transferring Employees covered by the Award. The Unions will be entitled to represent the industrial interests of any Non-Transferring Employees. The Unions did not oppose the evidence filed on behalf of Amplitel and respectively confirmed their support of the application.

Consideration

[8] Part 2-8 of the Act provides for the Commission to make certain orders if there is, or is likely to be, a “transfer of business” from an “old employer” to a “new employer” (s.317). On the evidence before the Commission, I am satisfied that:

•  there is, or is likely to be, a transfer of business from TCL to Amplitel within the meaning of s.311 of the Act; and, because of the operation of a provision of Part 2-8

•  the Agreement and the Award, being “transferable instruments” pursuant to ss.312(1)(a) and (c), will cover or are likely to cover Amplitel and the Transferring Employees after they commence employment with Amplitel in performance of the Transferring Work.

[9] Amplitel as the new employer or person likely to be the new employer (s.319(2)(a)) seeks orders pursuant to s.319(1)(b) that any Non-Transferring Employees who perform or are likely to perform the Transferring Work will also be covered by the Agreement and the Award.

[10] Section 319(3) of the Act provides that, in deciding whether to make an order under s.319, the Commission must take into account certain matters:

Views of the new employer – s.319(3)(a)(i)

[11] The new employer is the applicant and naturally supportive of the orders being made. This weighs in favour of the application.

Views of the employees who would be affected by the Order – s.319(3)(a)(ii)

[12] In the particular circumstances of this application, there are no employees who would be directly affected by the proposed orders. This is a neutral factor.

Whether any employees would be disadvantaged - s.319(3)(b)

[13] As the Agreement and the Award provide more generous conditions than the three industrial instruments that would otherwise apply to Non-Transferring Employees, I do not consider that any employees would be disadvantaged by the proposed orders. This weighs in favour of the application.

The nominal expiry date of an enterprise agreement - s.319(3)(c)

[14] The nominal expiry date of the Agreement has recently passed. The nominal expiry date was 30 September 2021. In the particular circumstances, this is a neutral consideration.

Whether the transferable instrument would have a negative impact on the productivity of the new employer’s worksite - s.319(3)(d)

[15] It was contended that, if granted, the application will have a positive impact on the productivity of the Amplitel workplace and employee engagement as it would mean that employees doing the same work are subject to uniform terms and conditions and minimum rates of pay. I am required only to consider whether the instrument would have a negative impact on productivity. There is nothing before the Commission to suggest it would, and in my opinion it will not, do so. This supports the grant of an order under s.319.

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] This consideration was said not to pertain to the present application, where Amplitel is seeking orders to effect broader coverage of the transferring instruments. I am required only to consider whether application of the instruments would bring about significant economic disadvantage. There is nothing before the Commission to suggest it would, and in my opinion it will not, do so. This supports the grant of the orders under s.319.

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

[17] It was contended that there would be a high degree of business synergy between the Agreement and the Award which would apply to any Non-Transferring Employees, and those same instruments that will already cover Transferring Employees employed by Amplitel. Indeed, if the proposed orders are made, the instruments covering the Transferring Employees and any Non-Transferring employees would be identical. This weighs in favour of the proposed orders being made.

The public interest – s.319(3)(g)

[18] Section 319(3) does not require the Commission to be satisfied that the proposed orders are “in the public interest” and it was not contended that there are any factors relevant to “the public interest”. This is a neutral factor.

Conclusion

[19] The mandatory considerations in s.319 are either neutral or weigh in favour of making the orders sought. Taking into account these matters and all the circumstances, including the fact that the Unions also support the application, I consider that it is appropriate to make the orders. The orders sought by Amplitel will issue separately in PR736082.

DEPUTY PRESIDENT

Appearances:

Mr M Tamvakologos for the Applicant.
Ms D Khatab of the CEPU.
Mr K Barlow of the CPSU.
Ms M Buchanan of Professionals Australia.

Printed by authority of the Commonwealth Government Printer

<PR736155>