Boeing Defence Australia Limited - [2022] FWC 486

[2022] FWC 486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Boeing Defence Australia Limited

(AG2022/563)

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 8 APRIL 2022

Application for an order relating to instruments covering new employer and transferring employee – application dismissed.

Boeing Defence Australia Limited (BDA, Applicant) has made an application (the Application) on 3 March 2022 to the Fair Work Commission (Commission) pursuant to s.318 of the Fair Work Act 2009 (the Act) for an order that the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018[1] (the BAA Agreement) not cover Boeing Defence Australia Limited (new employer) and Ms Karolina Leszczynski (transferring employee) in respect of her likely employment with the new employer.

Ms Leszczynski is currently employed by Boeing Aerostructures Australia Pty Ltd (BAA) as a Systems Engineer and her employment is covered by the BAA Agreement, which has a nominal expiry date of 30 June 2021. Ms Leszczynski applied for a role as a Systems Engineer at BDA and on 20 January 2022 accepted a conditional offer of permanent full-time employment which, among other things, provided that her employment with BDA would be conditional on the Commission granting the order sought by BDA pursuant to a s.318(1)(a) application.

Ms Leszczynski supports the Application.

The ‘Form F40’ filed in support of the Applicant provides that the new employment would be conditional on the orders sought being granted. Having regard to that condition, I corresponded with the Applicant and drew its attention to the Full Bench decision of this tribunal in TWU (179V) v Viva Energy Australia Ltd[2] (Viva Energy). I also sought further detail on whether the new work for the transferring employee would be the “same or substantially the same” as her previous work, having regard to the material filed in support of the Application, and I invited the Applicant to provide further material on both matters. The significance of these matters relates to s.311 of the Act and if there is a “transfer of business”. I will return to them below.

The Applicant supplied further submissions. Those submissions were helpful, and I set them out below. The Applicant and Ms Leszczynski were also content for me to determine the matter ‘on the papers’ and I have done so.

Is there “likely” to be a transfer of business?

Section 311(1) of the Act provides:

“(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between…

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 Boeing Defence Australia Limited

Details

AGLC: Boeing Defence Australia Limited [2022] FWC 486
Case: [2022] FWC 486
Decision Date

CaseChat Overview and Summary

Boeing Defence Australia Limited (BDA) applied to the Fair Work Commission for an order that a previous enterprise agreement not apply to a transferring employee who would be commencing employment with BDA. The employee, Ms Karolina Leszczynski, supported the application. The employee was currently employed by Boeing Aerostructures Australia Pty Ltd (BAA) and the enterprise agreement in question was the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018. The application was dependent upon the Fair Work Commission granting the order sought. The Deputy President concluded that the application should be dismissed. First, the Deputy President found that there was not likely to be a transfer of business for the purposes of s.311 of the Fair Work Act 2009 because the work Ms Leszczynski would be doing for BDA was not the same or substantially the same as her work for BAA. Second, even if there was a transfer of business, the Deputy President considered that the application should be dismissed because there was insufficient evidence of economic disadvantage to BDA to warrant an order under s.318 of the Fair Work Act 2009.

Orders