Assembly Australia Pty Ltd

[2022] FWC 2263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Assembly Australia Pty Ltd

(AG2022/3533)

Commissioner Bissett

MELBOURNE, 26 AUGUST 2022

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

Assembly Australia Pty Ltd (Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (FW Act) for an order that the Multiworks Australia Pty Ltd Enterprise Agreement 2020[1] (the Agreement) covers the Applicant in respect of non-transferring employees who perform the work contained within the classification structure of the Agreement.

The Applicant has filed a statutory declaration in support of the application.

I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the FW Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the FW Act, support the making of the order.

An order[2] to this effect will be issued with this decision.

COMMISSIONER

[1] AE509856.

[2] PR745176.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Assembly Australia Pty Ltd sought an order in the Federal Circuit Court of Australia regarding instruments covering a new employer and non-transferring employees. The dispute arose from a series of transfers of business under the Fair Work Act 2009. The primary issue before the court was whether certain employees, who were not transferred to the new employer, could still be subject to the same employment terms and conditions as those who were transferred. The court needed to determine the extent of the transfer provisions and whether the non-transferring employees were protected under the same provisions as the transferring employees.

The court examined the statutory framework provided by the Fair Work Act, focusing on the implications of section 594, which pertains to the transfer of business and its effect on employment contracts. The central question was whether the Act intended to bind non-transferring employees to the same terms and conditions as those who were transferred. The court considered the language of the Act and relevant case law to interpret the legislative intent. Ultimately, the court concluded that the non-transferring employees were not bound by the same terms and conditions as the transferring employees, as the Act's provisions were explicitly directed towards the transferred employees.

The decision was grounded in the specific wording of the legislation and its clear demarcation between transferring and non-transferring employees. The court held that the non-transferring employees were not subject to the same employment terms and conditions as those who were transferred. Consequently, the application by Assembly Australia Pty Ltd was dismissed, and the court clarified the scope of the transfer provisions under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established