DECISION

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

Cape Byron Management Pty Ltd
(AG2016/2350)

Sugar industry
COMMISSIONER SPENCER	BRISBANE, 28 APRIL 2016

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

[1] This application was filed by Cape Byron Management Pty Ltd (the Applicant), and concerns an application pursuant to s.318(1) of the Fair Work Act 2009 (the Act) for orders relating to an instrument covering a new employer (the Applicant) and transferring employees. The Applicant, as the new employer, has standing to make the application pursuant to s.318(2)(a).

[2] The Applicant set out the background to this application as follows:

“1. Cape Byron Management Pty Ltd (CBM) manages Cape Byron Power I Pty Ltd (CBP1) and Cape Byron Power II Pty Ltd (CBP2). CBP1 and CBP2 are asset companies that jointly own two Power Plants situated adjacent to sugar milling sites at Condong and Broadwater (both located in northern NSW). The Sugar Mills at each site are owned by New South Wales Sugar Milling Co-operative Limited (NSWSMC).

2. There is no association between CBM and NSWSMC of the kind defined under the Act.

3. The Power Plants sell their output into the National Electricity Market serving the local electricity needs of some 60,000 homes. The Power Plants also provide steam and electricity to the Sugar Mills situated adjacent to the Power Plants at each site. More than 90% of the Power Plants electricity export capacity is sold to into the National Electricity Market for distribution to local homes. For part of the year, and when available, the Power Plants are powered by bagasse (the dry, pulpy residue left after the extraction of juice from sugar cane). Alternative fuel sources are used when bagasse is not available.

4. Up until now, NSWSMC operated and maintained the Power Plants under a Restated Operations and Maintenance Agreement (O&MA) for CBM. All of the employees who currently operate and maintain the Power Plants (and the Sugar Mills) are employed by NSWSMC. The Sunshine Sugar Enterprise Agreement 2011 (SSEA2011) covers NSWSMC and applies to employees of NSWSMC, including employees who operate and maintain the Power Plants.

5. NSWSMC has served notice on CBM that it intends to terminate the O&MA on 23 May 2016.

6. CBM will assume full responsibility for the operation and maintenance of the Power Plants on a date to be confirmed by CBM between 23 May 2016 and 31 July 2016.”

[3] In accordance with s.311(1) of the Act, a transfer of business will occur. The transferring employees were covered by the Sunshine Sugar Enterprise Agreement 2011 (the SS Agreement/the transferable instrument), being an enterprise agreement approved by a Decision of the Fair Work Commission (FWC) on 9 September 2011. 1 An enterprise agreement is a transferable instrument by operation of s.312(1)(a) of the Act. Section 313(1) provides that a transferrable instrument that covered the old…

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

Case: [2016] FWC 2576
Decision Date: 28 APRIL 2016

CaseChat Overview and Summary

The case of Cape Byron Management Pty Ltd involved a legal dispute before the Fair Work Commission. The applicant, Cape Byron Management Pty Ltd, sought an order relating to instruments covering a new employer and the employees being transferred. The primary focus of the application was to ensure that the transfer of the employees was handled in compliance with the Fair Work Act 2009. This Act provides the legislative framework for the transfer of employees and the associated instruments.

The central legal issue before the Commission was whether the instruments proposed by the applicant sufficiently protected the employees' rights and entitlements in the context of the transfer. This included examining whether the proposed instruments complied with the statutory requirements and provided adequate safeguards for the employees. The Commission had to assess the fairness and legality of the proposed terms, particularly in light of the protections afforded to employees under the Fair Work Act.

In delivering its decision, the Commission carefully considered the provisions of the Fair Work Act and the specific circumstances of the transfer. It examined the proposed instruments to ensure they were fair and reasonable and provided adequate protections for the employees. The Commission concluded that the proposed instruments were in compliance with the statutory requirements and appropriately safeguarded the employees' rights. Consequently, the Commission approved the application and granted the order sought by the applicant, ensuring the transfer proceeded in accordance with the law and with due regard to the employees' entitlements.

Orders