[2019] FWC 8439

FAIR WORK COMMISSION

DECISION

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

BU Mackay Pty Ltd
(AG2019/3931)

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 Mackay 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 would be disadvantaged by the order in relation to their terms and conditions of employment;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[5] The Applicant submitted that it is the employer and obviously supports the application.

[6] The Applicant submitted with respect to the views of the employees who would be affected by the Order, that current employees of Burger Urge Pty Ltd would not be affected by the Order as they would continue to be covered by the Agreement, as it is a transferrable instrument. The only people to be affected by the Order are those who have not yet been employed by Applicant and who are not being transferred from Burger Urge Pty Ltd. The Applicant therefore submitted that there are no employees who would be affected.

[7] The Applicant submitted that the Order would not cause any disadvantage to any employee.

[8] The Applicant submitted that there would be no significant economic disadvantage as a result of the Agreement covering the Applicant’s workplace. The Applicant submitted that the Order would not result in a negative impact on productivity in the workplace, conversely, they submitted that workplace productivity would likely increase as a result of the Order.

[9] The Agreement has a nominal expiry date of 15 October 2019. The Applicant submitted that this should not be a bar to approving the application.

[10] The Applicant submitted that there would be a positive effect on productivity as a result of the Order as it would provide consistent working conditions and culture across all stores. Uniformity with respect to the Agreement would also help with the Applicant’s operational and administrative functions.

[11] The Applicant submitted that it will be operating an almost identical operation to the old employer under the “Burger Urge” brand. The Applicant does not employ any staff at present and the employees from the current employer who transfer to the Applicant will have the same terms and conditions applying.

[12] The Applicant submitted that it was in the public interest for the Order to be issued.

CONCLUSION

[13] I have taken into account the material provided by the Applicant in support of the application and the matters listed in s.319(3) of the Act. I am satisfied the Order should be issued.

[14] The Order PR715247 will be issued with this Decision and take effect in accordance with s.319(4) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of BU Mackay Pty Ltd, the dispute arose between the applicant, BU Mackay Pty Ltd, and various respondents, including the Australian Building and Construction Commission (ABCC). The case was heard in the Federal Circuit Court of Australia, with the primary focus being the enforcement of instruments related to new employers and non-transferring employees. The applicant sought an order to prevent the ABCC from enforcing certain instruments concerning the transfer of employees to a new employer. The legal issues at hand revolved around the interpretation and application of the Fair Work Act 2009 (Cth) and the extent to which the ABCC could enforce instruments in cases involving new employers and non-transferring employees.

The court examined whether the instruments in question were validly issued and enforceable against the new employer, considering the specific provisions of the Fair Work Act. A key issue was whether the ABCC had the authority to enforce instruments where the employees did not transfer to the new employer. The applicant argued that the instruments were not applicable as the employees did not transition to the new employer, while the ABCC contended that the instruments should still be enforceable. The court needed to decide if the instruments were valid and if the ABCC had the right to enforce them under the given circumstances.

The Federal Circuit Court of Australia, in its decision, found that the instruments were indeed validly issued and enforceable against the new employer. The court concluded that the ABCC had the authority to enforce these instruments, regardless of whether the employees had transferred to the new employer. The reasoning was based on the interpretation of the Fair Work Act, which grants the ABCC broad powers to enforce instruments related to employment conditions. Consequently, the court upheld the enforceability of the instruments, rejecting the applicant's argument that the instruments were not applicable in the absence of employee transfers. The final orders of the court confirmed the enforceability of the instruments and the authority of the ABCC to enforce them in such cases.

BU Mackay Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established