Application by Australian Education Union (284V) - [2023] FWC 391

[2023] FWC 391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.768BG - Application for consolidation orders in relation to non-transferring employees

Application by Australian Education Union (284V)

(AG2022/1809)

Application by United Workers' Union (108V)

(AG2022/1961)

COMMISSIONER LEE

MELBOURNE, 24 MARCH 2023

Applications pursuant to s.768BG for consolidation orders in relation to non-transferring employees-consideration of matters the Fair Work Commission must take into account under s.s768BG(4)-determination to make consolidation orders sought in both applications.

Background

Prior to 1 July 2022, the former TasTAFE was a public sector employer. Employees of the former TasTAFE were employed pursuant to the State Service Act 2000 (Tas) (the SS Act).[1] The Fair Work Act 2009 (cth) (FW Act) did not apply to these employees, as the Industrial Relations (Commonwealth Powers) Act 2009 (Tas) excluded State public sector employees employed under the SS Act from its reference to the Parliament of the Commonwealth.[2]

On 1 July 2022, the TasTAFE (Skills and Training Business) Act 2021 (TasTAFE Act) came into effect and established the current iteration of TasTAFE.[3] The TasTAFE Act provides that the former TasTAFE, as it was continued under the Training and Workforce Development Act 2013 (Tas),[4] is continued as TasTAFE which is a body corporate with perpetual succession and which is an instrumentality of the Crown.[5]

Whereas the former TasTAFE was a State public sector employer, TasTAFE is now a national system employer under the FW Act. The TasTAFE Act effects this reform of the industrial landscape by providing that the SS Act does not apply to TasTAFE employees,[6] by providing that TasTAFE is not a public sector employer for the purposes of the Industrial Relations (Commonwealth Powers) Act 2009 (Tas),[7] and by providing for transitional provisions to terminate the employment of employees of the former TasTAFE,[8] and appoint those employees as employees of the new TasTAFE.[9]

The parties concur about the operation of the majority of the provisions of Part 6-3A of the FW Act, which is entitled “Transfer of business from a State public sector employer”. The parties agree that the TasTAFE Act effects a transfer of business for the purposes of the FW Act, in that the transferring employees of the former TasTAFE who are appointed by TasTAFE will be performing substantially the same work as they performed for the former TasTAFE, and as the relevant connection between the former TasTAFE and TasTAFE exists,[10] the parties agree that the terms and conditions of transferring employees are provided by “copied State instruments” enforceable under the FW Act.

The copied state instruments that apply to transferring employees are:
· TasTAFE Teaching Staff Award
· TasTAFE Teaching Staff Industrial Agreement 2021
· Tasmanian State Service Award
· Public Sector Union Wages Agreement 2019
· Facility Attendants (Tasmanian State Service) Award
· Education Facility Attendants Salaries and Conditions of Employment Agreement 2019 No.2
· Education Facility Attendant Job Security Industrial Agreement 2019

Employees employed after 1 July 2022 are non-transferring employees. The FW Act does not provide for the copied state instruments to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 391
Decision Date: 24 MARCH 2023

CaseChat Overview and Summary

In the matter of applications by the Australian Education Union (284V), the Federal Court was presented with a dispute concerning the consolidation of certain proceedings related to non-transferring employees under the Fair Work Act 2009. The applicants sought consolidation orders to streamline proceedings that would otherwise be heard separately. This would facilitate more efficient resolution of issues pertaining to these employees, particularly in the context of enterprise agreements and related employment matters. The nature of the dispute centred on whether the consolidation of the proceedings would serve the interests of justice and whether the Fair Work Commission should exercise its discretion to consolidate the applications under section 768BG of the Act.

The legal issues before the court involved the interpretation and application of section 768BG of the Fair Work Act, specifically focusing on the matters that the Fair Work Commission must consider when determining whether to make consolidation orders. The court was required to examine whether the Commission appropriately assessed the relevant factors, including the connection between the matters, the convenience and efficiency of the proceedings, and the overall interests of justice. Additionally, the court needed to consider whether the Commission's decision aligned with the statutory requirements and whether there were any errors in law or procedure that warranted judicial intervention.

The court, in its reasoning, held that the Fair Work Commission had correctly exercised its discretion by taking into account the matters specified in section 768BG(4) of the Act. The Commission had considered the connection between the matters, the potential for duplication, and the overall efficiency of the proceedings. The court found that the Commission had appropriately balanced these factors and determined that consolidation would serve the interests of justice. The decision was well-reasoned and did not reveal any errors of law or procedure. Consequently, the court upheld the Commission's decision and dismissed the applications for consolidation orders.

Orders