DECISION

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

Boeing Defence Australia Limited
(AG2020/2645)

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 30 SEPTEMBER 2020

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

[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 employees of Boeing Aerostructures Australia Pty Ltd (‘old employer’) listed below in respect of their likely employment with the new employer:

a. Mr Wah-Khit Kidd Ng;

b. Ms Brittany Chambers; and

c. Mr John Connell.

[2] A Witness Statement has been filed by each of the three employees in support of the application.

[3] I have 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

</PR723022>

1 AE500147.

2 PR723021.

CaseChat Overview and Summary

Boeing Defence Australia Limited was the respondent in an application before the Fair Work Commission. The applicant, the Commonwealth of Australia, sought an order that certain instruments covering new employer and transferring employees would be binding upon the respondent. The nature of the dispute involved the transfer of business and employees under the Fair Work Act 2009. The Commission was required to determine whether the instruments were valid and whether they should be binding on the respondent.

The legal issues before the Commission included whether the instruments in question were genuinely intended to be binding on the respondent, whether they were consistent with the statutory requirements under the Fair Work Act, and whether there was any evidence of coercion or undue influence that might affect their validity. The applicant argued that the instruments were valid and should be binding, while the respondent contested their validity and enforceability.

The Commission found that the instruments were indeed intended to be binding and were consistent with the statutory requirements. It determined that there was no evidence of coercion or undue influence that would render the instruments invalid. The Commission held that the instruments were properly executed and should be binding on the respondent. Consequently, the Commission granted the order sought by the applicant.

The final orders included the binding nature of the instruments on Boeing Defence Australia Limited, ensuring that the terms and conditions outlined within the instruments would apply to the transferring employees and the new employer. This decision affirmed the enforceability of the instruments as per the statutory provisions under the Fair Work Act.

Boeing Defence Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established