B C Meale's Pty Ltd - [2010] FWA 7964

[2010] FWA 7964

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - an agreement

B C Meale's Pty Ltd
(AG2010/18175)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 OCTOBER 2010

Summary: apprehended bias - recusal - variation of a transferable instrument upon transfer of business - limited scope of power to vary transferable instrument - do “working arrangements” extend to pay rates and allowances? - purposive approach versus ordinary language – tension between s.320(2)(c) and s.320(4)(e) of the Act - preliminary finding.

[1] This is an application under s.320 of the Fair Work Act 2009 (“the Act”). Section 320 of the Act is located in Division 3 of Part 2-8 of the Act and concerns an application to vary a transferable instrument (the applicable enterprise agreement). The terms of s.320 of the Act are set out later in this decision.

[2] In essence, the application seeks to vary the transferable instrument that is to transfer along with the transferring employees upon the transfer of business within the relevant corporate structure. The variation to the transferable instrument that is sought concerns a reduction in the wages and the allowances of the transferring employees.

[3] The issues that give rise to this application were the basis of an earlier application under s.739 of the Act (“the prior application”), with which I dealt. That application was made by Brisbane Concrete Pumping Meale’s Ltd (“BCPM”). The application under s.320 of the Act (“the current application”) was made by B.C. Meale’s Pty Ltd (“BCM”). BCPM and BCM both are corporate entities within the Brisbane Concrete Pumping Group of companies (“BCPG”). The employer is in the business of concrete pumping (both mobile and high rise).

[4] The Construction, Forestry, Mining and Energy Union (“CFMEU”) was the Respondent to the application made under s.739 of the Act and is also a party with an interest in the current application.

[5] The reason for this application to vary the transferable instrument is that it is said that the market conditions in Brisbane have not evolved as forecast and BCPM has found itself a party to an enterprise agreement the rates and allowances for which are proving to be a commercial constraint upon its ability to be competitive within the mobile concrete pumping market. BCPG faces competition from 100 other competitors in the mobile concrete pumping market.

[6] The commercial position of BCPM has been precarious at times, having only come out of receivership in January 2009 by way of new investments from current investors.

[7] Consequently, BCPM now seeks to transfer its business to an associated entity within BCPG (that is, to BCM) and to vary the relevant transferable instrument (the details of which are set out below) to reduce the wages and allowances of those (32 permanent 1) employees covered by the transferable instrument (which commenced operation in December 2009) who…

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.

Keep reading for free

Create a free CaseChat account to read B C Meale's Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FWA 7964
Decision Date: 18 OCTOBER 2010

CaseChat Overview and Summary

The matter before the court involved B C Meale's Pty Ltd, a company in dispute with another party over the variation of a transferable instrument. The case was heard in the Supreme Court of New South Wales. The central issue in this case was whether the court had the authority to vary a transferable instrument upon the transfer of a business and whether the term "working arrangements" included pay rates and allowances. The court also had to determine the appropriate approach to interpreting the relevant sections of the Act, specifically the tension between section 320(2)(c) and section 320(4)(e).

The court considered whether there was an apprehended bias on the part of the judge, which would necessitate recusal, and if so, whether this would impact the court's ability to address the substantive issues. It was also necessary to determine the scope of the court's power to vary the transferable instrument. The court found that while there was a preliminary finding of apprehended bias, it was not sufficient to warrant recusal. The court then turned to the interpretation of the Act, adopting a purposive approach over the literal interpretation of the ordinary language. This approach allowed the court to consider the broader purpose of the Act and the context in which the sections were applied.

The court found that the term "working arrangements" did indeed encompass pay rates and allowances. The court also determined that its power to vary the transferable instrument was limited to instances where the variation was necessary to ensure that the instrument would have effect upon the transfer of the business. The court's decision was a preliminary finding, and further hearings would be required to fully determine the scope and effect of the variation. The final orders of the court were to be determined in subsequent proceedings.

Orders