1835i Group Pty Ltd

[2022] FWC 479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

1835i Group Pty Ltd

(AG2022/538)

Banking finance and insurance industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 MARCH 2022

Application for an order relating to instruments covering new employer and transferring employees in agreements

1835i Group Pty Ltd (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the ANZ Enterprise Agreement 2015 - 2016 (Agreement) does not cover the Applicant in respect of six relevant transferring employees (Amar Kashyap; Andy Chu; Ricardo Ferrerai; Cassandra Dessein; Joel Wasserman; Paul Hayat) who perform the work contained within the classification structure of the Agreement. The Agreement nominally expired on 30 September 2018. The Applicant is the new employer of relevant transferring employees.

The Applicant has filed an affidavit in support of its application, made by Mr Justin Greenstein (sworn 22 February 2022). In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Mr Greenstein. Specifically, I note that the relevant transferring employees support the order/s sought by the Applicant, and that such relevant transferring employees will not be disadvantaged (in their terms and conditions of employment) if the orders sought are made. I take the matters set out under s.318(3)(d) to (f) of the Act to be neutral considerations that do not weigh against the making of the orders sought, and that there are no public interest concerns in making the orders.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I have determined to exercise my discretion to make the orders sought by the Applicant pursuant to s.318(1) of the Act. Orders in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

1835i Group Pty Ltd applied to the Fair Work Commission for an order that the ANZ Enterprise Agreement 2015 - 2016 does not apply to six relevant transferring employees who perform work covered by the classification structure of the Agreement. The Applicant is the new employer of the transferring employees and the Agreement nominally expired on 30 September 2018. The court was required to decide whether to make the orders sought by the Applicant, in accordance with section 318 of the Fair Work Act 2009.
The court relied on the evidence of Mr Justin Greenstein, who made an affidavit in support of the Applicant's application. The court took into account the matters set out in section 318(3) of the Act, which included the support of the transferring employees for the order, and that they would not be disadvantaged if the orders were made. The court also considered that there were no public interest concerns in making the orders. The court determined that the matters set out under section 318(3)(d) to (f) of the Act did not weigh against the making of the orders sought.
The court exercised its discretion to make the orders sought by the Applicant, in accordance with section 318(1) of the Act. The court issued orders in this regard, which will be issued contemporaneously with this decision. The court found in favour of the Applicant and granted the orders sought.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established