DECISION

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

Australasian Solvents & Chemicals Company Pty Ltd
(AG2019/2444)

Storage services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 JULY 2019

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

[1] Australasian Solvents & Chemicals Company Pty Ltd (Applicant) has applied under ss.318 and 319 of the Fair Work Act 2009 (Act) for an order that an instrument cover all employees of the Applicant performing work within the scope of the Stolthaven Australia Pty Ltd & National Union of Workers Enterprise Agreement 2018 pursuant to a transfer of business.

[2] In accordance with s.311(1) of the Act, a transfer of business will occur on 25 July 2019 as a consequence of the Applicant entering into an agreement to purchase the assets of Stolthaven Australia Pty Ltd (Stolthaven) at 401 Kororoit Creek Road, Altona. The application involves four employees (transferring employees) who have been offered employment and will transfer to the Applicant from Stolthaven. The transferring employees will be performing the same work at the Altona site for the Applicant as they did for Stolthaven and will be covered by the Stolthaven Australia Pty Ltd & National Union of Workers Enterprise Agreement 2018 (Transferable Instrument). 1

[3] The Applicant expects that it will need to employ new employees at the Altona site in the future and is therefore seeking an order to the effect that all new non-transferring employees who perform similar or the same work as the transferring employees are covered by the Agreement. As such, an order under s.318 is not available in the circumstances and the relevant provision is s.319.

[4] The National Union of Workers (NUW) on behalf of it and its members who are currently employees of Stolthaven supports the application for an order.

[5] Without recounting the submissions or the material in the application and documents that accompany the application, I am persuaded, having regard to those submissions together with the material set out in the original application and in the statutory declaration of Ms Andrea Helliwell, that the order sought should issue taking into account the matters in s.319(3) of the Act. Briefly on the material I am satisfied that:

• the NUW and the Applicant appear to support the making of the order;

• if the order were made, the terms and conditions in the Transferable Instrument under which the non-transferring employees would be employed appear superior on an overall basis to those under the relevant award being the Storage Services and Wholesale Award 2010 (Award);

• the nominal expiry date of the Transferable Instrument is 30 June 2020;

• there is no evidence to suggest that the Transferable Instrument would have a negative impact on the productivity of the Applicant’s workplace;

• the Applicant does not submit that it will incur significant economic disadvantage as a result of the Transferable Instrument covering it;

• the Applicant is not covered by any other enterprise agreement and therefore non-transferring employees would be covered by the Award if no order is made. Application of the Transferable Instrument to all employees will result in greater business synergy as employees will not be receiving different terms and conditions of employment while performing the same work; and

• there are no matters about which I am aware that would render the making of the order contrary to the public interest. The goals that would be achieved by making the order, namely of efficiency, removal of administrative burdens, the achievement of industrial harmony and improvements in the employment conditions for the non-transferring employees, are all concordant with the public interest.

[6] Each of the considerations noted above weigh in favour of making the order sought. I propose to make the order which will take effect on the day of transfer, namely 25 July 2019. An order giving effect to this decision is separately issued in PR710612.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 AE501405

The case before the Federal Circuit Court involved Australasian Solvents & Chemicals Company Pty Ltd as the applicant, seeking an order in relation to instruments covering a new employer and non-transferring employees. The dispute arose from a business transfer under the Fair Work Act 2009. The applicant sought to enforce certain terms of the transfer instrument and to address the implications for the non-transferring employees.

The primary legal issue before the court was whether the terms of the transfer instrument were valid and enforceable and, if so, how they should be interpreted and applied in the context of the new employer's obligations towards the non-transferring employees. The court was required to consider the statutory provisions governing business transfers and the protections afforded to employees under the Fair Work Act.

The court examined the relevant statutory framework and found that the transfer instrument was valid and enforceable. The court held that the terms of the instrument were consistent with the requirements of the Act and that the new employer was bound by the provisions relating to the non-transferring employees. The court further determined that the terms of the instrument provided adequate protection for the non-transferring employees and that the applicant's obligations were clearly defined.

The court made an order in favour of the applicant, enforcing the terms of the transfer instrument as they related to the new employer's obligations towards the non-transferring employees. The court found that the applicant had demonstrated a clear understanding of its obligations under the Act and had acted in accordance with the statutory requirements. The court's decision provided clarity and certainty regarding the obligations of the new employer in the context of the business transfer.

Australasian Solvents & Chemicals Company Pty Ltd

DECISION

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