DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Australian Laboratory Services Pty Ltd
(AG2015/4835)

Water, sewerage and drainage services
COMMISSIONER SAUNDERS	NEWCASTLE, 1 DECEMBER 2015

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

[1] Australian Laboratory Services Pty Ltd (ALS) acquired the laboratory arm of Hunter Water Australia Pty Ltd (HWA), a subsidiary of Hunter Water Corporation, on 19 December 2014. HWA and a number of its employees were covered by the Hunter Water Australia Pty Ltd General Employees’ Agreement (HWA Agreement).

[2] ALS has made an application to the Fair Work Commission (Commission) for an order under section 318 of the Fair Work Act 2009 (Cth) (Act) that the HWA Agreement not cover ALS and 21 of its employees 1 who have transferred from HWA to ALS (Transferring Employees). The Australian, Municipal, Administrative, Clerical and Services Union (ASU), which represents a number of the Transferring Employees, opposes the order sought by ALS.

Agreed matters

[3] It is not in contest and I am satisfied on the evidence that:

(a) the acquisition by ALS of the laboratory arm of HWA in December 2014 was a transfer of business within the meaning of section 311 of the Act;

(b) pursuant to section 313 of the Act, the HWA Agreement now covers ALS and the Transferring Employees;

(c) in addition to covering the Transferring Employees, the HWA Agreement covers employees who transferred from HWA to the acquirers of other parts of the HWA business, such as Veolia and H20;

(d) the HWA Agreement continues to cover the ASU pursuant to section 315(3) of the Act;

(e) the HWA Agreement has a nominal expiry date of 30 June 2015;

(f) ALS is a subsidiary of ALS Ltd, which operates in the testing, inspection and certification industry in 55 countries and employs over 11,500 staff;

(g) ALS is covered by the Australian Laboratory Services Pty Ltd Enterprise Agreement 2015 (ALS Agreement), which was approved on 16 February 2015 and has a nominal expiry date of 15 February 2018. The ALS Agreement applies at dozens of ALS’ sites around Australia, some of which became part of ALS through acquisition. One of the sites at which the ALS Agreement applies is ALS’ premises at Mayfield West in Newcastle;

(h) since May 2015, the 21 Transferring Employees have shared work premises with, and performed substantially the same work as, about 25 ALS employees who are covered by the ALS Agreement; and

(i) the occupations of each of the 21 Transferring Employees fall within the classifications covered by the ALS Agreement, with the result that the ALS Agreement will cover and apply to the Transferring Employees if the order sought by ALS under section 318 of the Act is made by the Commission.

Issues

[4] The issue I need to determine in this matter is whether or not to exercise my discretion under section 318(1)…

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.

Continue reading Australian Laboratory Services Pty Ltd

Details

AGLC: Australian Laboratory Services Pty Ltd [2015] FWC 7916
Case: [2015] FWC 7916
Decision Date: 1 DECEMBER 2015

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Australian Laboratory Services Pty Ltd, where an application was made for an order concerning instruments that covered a new employer and transferring employees. The applicant sought to address the implications of the transfer of business, specifically focusing on the terms of employment and the rights of the employees involved. The Commission was tasked with determining whether the new employer should assume the existing employment terms or if modifications were necessary to align with the new operational context.

The central legal issues revolved around the interpretation and application of relevant employment laws and regulations. The Commission had to consider whether the transfer of business triggered a specific statutory framework that required the new employer to adopt the existing employment conditions. Additionally, the court examined the rights and obligations of the employees during the transition period, ensuring that their entitlements were protected under the law.

In its decision, the Commission carefully analysed the statutory provisions and relevant case law to arrive at its conclusions. It was determined that the new employer was indeed bound by the existing employment terms unless there was a clear and justifiable reason to deviate from these conditions. The Commission highlighted the importance of protecting employees' rights during business transitions, ensuring that they were not disadvantaged by the change in ownership. The final decision provided clarity on the obligations of the new employer and the rights of the transferring employees, ensuring a fair and lawful transition.

Orders