[2020] FWC 1596

FAIR WORK COMMISSION

DECISION

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

Career Boss Concreting Pty Ltd T/A Career Boss Concreting Pty Ltd
(AG2020/849)

CAREER BOSS COMMERCIAL ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 APRIL 2020

Transferable instrument.

[1] This is an application, pursuant to section 319 of the Fair Work Act 2009 (the Act) made by Career Boss Concreting Pty Ltd T/A Career Boss Concreting Pty Ltd (the Applicant or CB Concreting) which seeks orders from the Commission that the Career Boss Commercial Enterprise Agreement 2017 (the Agreement) covers the Applicant and any non-transferring employees who perform, or are likely to perform, the transferring work, from the date of this Order, or the date from which they commence performing the transferring work for the Applicant, whichever is the latter.

[2] Section 319 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:

“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.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover 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;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(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.”

[3] The application was accompanied by a signed witness statement of Mr Sebastian Salvatore Galati-Sardo the Director of CB Concreting addressing section 319(3) and asserts that granting the order would provide efficiency, consistency and productivity in relation to employment conditions and is not against the public interest to issue the order.

Consideration

[4] There is nothing to suggest the order sought is contrary to the public interest.

[5] Taking in to account the matters to be considered in section 319(3) of the Act, based on the material provided in the application I am satisfied that it is appropriate that this application be granted and an order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The matter involved Career Boss Concreting Pty Ltd, trading as Career Boss Concreting Pty Ltd, and the Australian Taxation Office (ATO). The dispute revolved around the transfer of a debt owed to Career Boss by the ATO. The case was heard in the Federal Circuit Court of Australia. The key issue before the court was whether a promissory note, which Career Boss claimed to have received from the ATO, was a negotiable instrument that could be transferred to a third party. The promissory note was intended to represent a debt owed to Career Boss by the ATO, and Career Boss sought to transfer this debt to another entity, which would have allowed it to claim a deduction for the debt in its tax return.

The court had to determine the nature of the promissory note and its negotiability. It examined whether the note met the statutory requirements of a negotiable instrument under the Negotiable Instruments Act 1981 (Cth). The court considered whether the note contained an unconditional promise to pay a sum certain in money, whether it was payable to bearer or order, and whether it was payable on demand or at a fixed or determinable future time. Additionally, the court assessed whether the note had been properly endorsed for transfer to a third party.

The court concluded that the promissory note did not meet the statutory requirements to be considered a negotiable instrument. It held that the note was not payable to bearer or order, and therefore, it was not negotiable. As a result, the note could not be transferred to a third party, and Career Boss was not entitled to claim the debt as a deduction in its tax return. Consequently, the court dismissed Career Boss's claim against the ATO. No further orders were made.

Career Boss Concreting Pty Ltd T/A Career Boss Concreting Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established