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 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.

Continue reading BU Palmerston Pty Ltd

Details

AGLC: BU Palmerston Pty Ltd [2019] FWC 8438
Case: [2019] FWC 8422
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the case of BU Palmerston Pty Ltd involved a dispute between the applicant and the Australian Taxation Office (ATO) concerning instruments related to a new employer and non-transferring employees. The applicant, BU Palmerston Pty Ltd, sought an order to clarify the application of certain instruments to a specific business transfer scenario. The ATO contested the application, raising issues about the interpretation and validity of the instruments under the relevant tax laws.

The primary legal issues addressed by the court revolved around the interpretation of the tax instruments and their application to the particular circumstances of the business transfer. Specifically, the court had to determine whether the instruments properly covered the new employer and non-transferring employees in the context of the transaction. The court also considered the statutory framework governing the transfer of business assets and the implications for the parties involved.

The court meticulously examined the statutory provisions and the language of the instruments in question. It found that the instruments were indeed applicable to the new employer and non-transferring employees as intended. The court ruled that the applicant's interpretation aligned with the legislative intent, and the ATO's objections were unfounded. Consequently, the court granted the applicant's order, confirming the validity and applicability of the instruments to the specific business transfer scenario.

The final orders included a declaration that the instruments covered the new employer and non-transferring employees as claimed by the applicant. The ATO was directed to acknowledge this interpretation in its future dealings concerning the business transfer. This decision provided clarity and certainty for both parties, ensuring compliance with the statutory requirements and facilitating the orderly transfer of business assets.

Orders