DECISION

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

Boeing Defence Australia Limited
(AG2021/5248)

BOEING AEROSTRUCTURES AUSTRALIA PTY LTD (PORT MELBOURNE) ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 28 JUNE 2021

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

[1] Boeing Defence Australia Limited (the Applicant) has made an application 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 Agreement) not cover Boeing Defence Australia Limited (‘new employer’) and the employee of Boeing Aerostructures Australia Pty Ltd (‘old employer’) listed below in respect of her likely employment with the new employer:

a. Ms Anneke Donnelly

[2] Witness statements have been filed by both Ms Anneke Donnelly and Ms Vanessa Taylor, Human Resources Director of Boeing Defence Australia Limited, in support of the application.

[3] The materials filed in support of the application confirm that Ms Donnelly voluntarily applied for a role with the new employer and subsequently accepted a contract of employment which stated that her employment with the new employer would be conditional upon the Commission granting orders in relation to an application made under s.318 of the Act.

[4] While the old and new employer are wholly owned subsidiaries of Boeing Australia Holdings Proprietary Limited, the nature of the operations, structure and functions are completely distinct. There is no enterprise agreement that covers the new employer.

[5] The Applicant submits that Ms Donnelly will not be disadvantaged in relation to her terms and conditions of employment when employed by the new employer. In particular, the witness statement filed by Ms Taylor confirms that a thorough comparison and analysis of the existing terms and conditions of Ms Donnelly’s employment with the old employer, and the terms and conditions offered by the new employer has been conducted.

[6] Further, the contract confirms that Ms Donnelly’s service and all entitlements to annual leave, personal/carer’s leave and long service leave with the old employer will be recognised by the new employer.

[7] Pursuant to s.318(3)(a) I have taken into account the views of the new employer and Ms Donnelly. For the purposes of s.318(3)(b) of the Act I am satisfied that Ms Donnelly will not be disadvantaged in relation to her terms and conditions of employment.

[8] I have also taken into account the material provided by the Applicant in support of its application and the matters set out in s.318(3) of the Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.318(3) of the Act, support the making of the order.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE500147.

2 PR730641.

Boeing Defence Australia Limited recently applied to the Federal Court for an order regarding instruments related to a new employer and a transferring employee. The applicant, Boeing Defence Australia Limited, sought clarification and enforcement of contractual provisions concerning the transfer of an employee from another employer to its own employment. The Federal Court was tasked with determining whether the instruments in question adequately covered the transition and obligations of both parties involved.

The court examined the nature and scope of the contractual instruments, focusing on whether they were sufficient to bind both the new employer and the transferring employee under the relevant provisions. The primary legal issue was whether the instruments complied with applicable laws and adequately protected the rights of the employee in the transition process. The court also needed to assess if the instruments correctly reflected the obligations and entitlements of both parties as stipulated by relevant employment and industrial relations laws.

The Federal Court determined that the instruments were indeed sufficient to cover the transition of the employee from the previous employer to Boeing Defence Australia Limited. The court held that the instruments were clear and comprehensive, ensuring that both parties' rights and obligations were adequately protected. The court emphasised the importance of such instruments in maintaining the integrity of the employment relationship and ensuring compliance with legal standards. As a result, the court granted the application, affirming the enforceability of the instruments in question.

Boeing Defence Australia Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established