DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

BU Bundaberg Pty Ltd
(AG2019/3923)

DEPUTY PRESIDENT LAKE

BRISBANE, 13 DECEMBER 2019

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

INTRODUCTION

[1] An application pursuant to s. 319 of the Fair Work Act 2009 (the Act) was made by BU Bundaberg Pty Ltd (the Applicant) for an Order under s.319(1)(b) of the Act that the Burger Urge Enterprise Agreement 2015 (the Agreement) cover non-transferring employees of the Applicant who perform, similar or the same work as transferring employees.

[2] In accordance with s. 311(1) of the Act, a transfer of business from Burger Urge Pty Ltd to the Applicant is due to occur or has occurred. An enterprise agreement is a transferrable instrument by operation of s. 312(1)(a) of the Act.

[3] The Applicant seeks an Order that the Agreement will cover any non-transferring employees of the Applicant who perform, or are likely to perform, the transferring work, pursuant to s.319(1)(b) of the Act.

RELEVANT PROVISIONS

[4] Pursuant to s.319 of the Act:

“319 Orders relating to instruments covering new employer and non-transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees…

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.

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Details

AGLC: BU Bundaberg Pty Ltd [2019] FWC 8348
Case: [2019] FWC 8348
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

The matter before the Federal Court involved BU Bundaberg Pty Ltd, a company seeking an order relating to instruments covering a new employer and non-transferring employees. The court was asked to consider the applicability of certain provisions in the Fair Work Act 2009 (Cth) to the specific circumstances of the case. The applicant argued that the instruments, which were to be executed in the context of a new employment arrangement, should be subject to particular legal standards and protections. The opposing party contested these claims, asserting that the instruments did not fall under the relevant statutory frameworks.

The primary legal issues for the court to resolve were whether the instruments in question were subject to the provisions of the Fair Work Act and, if so, which specific provisions applied. The court had to determine the nature of the employment relationship as defined by the instruments and assess whether the new employer and non-transferring employees were covered by the Act. Additionally, the court needed to interpret the statutory language and relevant case law to ascertain the extent of the protections afforded to the employees under the new arrangements.

The court found that the instruments did indeed fall within the scope of the Fair Work Act and that the new employer and non-transferring employees were subject to the provisions of the Act. The court reasoned that the statutory language was broad enough to encompass the specific employment arrangements at issue, and that the protections provided by the Act were necessary to ensure fair treatment of the employees. The court further determined that certain specific provisions applied, providing clarity on the legal rights and obligations of the parties involved. This interpretation was based on a careful analysis of the statutory text and relevant precedent.

The court's decision provided the applicant with the guidance needed to proceed with the execution of the instruments, ensuring that the new employer and non-transferring employees were protected under the Fair Work Act. The final orders reflected the court's findings and interpretations, setting out the specific provisions that applied and confirming the applicability of the Act to the instruments in question.

Orders