DECISION

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

BU Palmerston Pty Ltd
(AG2019/3932)

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 Palmerston 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)…

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 Palmerston Pty Ltd [2019] FWC 8438
Case: [2019] FWC 8438
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

The case before the court involved BU Palmerston Pty Ltd, a company that had taken over operations from the former employer, and several employees who were not transferred to the new employer. The dispute centred around the application for an order relating to instruments that were to be executed by the new employer concerning the non-transferring employees. The matter was heard in the Fair Work Commission, the body responsible for resolving employment disputes under the Fair Work Act 2009.

The primary legal issue before the court was whether the new employer, BU Palmerston Pty Ltd, was required to enter into the instruments with the non-transferring employees. The instruments in question pertained to the terms and conditions of employment, including matters such as wages, hours of work, and other employment-related benefits. The court had to determine whether these instruments were necessary under the legislation and if the new employer was bound to adhere to the terms and conditions previously agreed upon by the former employer.

In its decision, the court considered the provisions of the Fair Work Act 2009 and the relevant regulations. The court found that the instruments were necessary for ensuring that the non-transferring employees continued to receive fair and consistent terms and conditions of employment. The court concluded that the new employer was indeed required to enter into the instruments with the non-transferring employees. The reasoning was that the legislation aimed to protect the employees' rights and maintain continuity in their employment terms, ensuring that there was no detrimental impact on the employees due to the change of employer.

The court ordered that BU Palmerston Pty Ltd must execute the instruments with the non-transferring employees within the specified timeframe. This order was intended to uphold the legislative intent of protecting employees' rights and maintaining continuity in their employment terms during a change of employer.

Orders