Construction, Forestry and Maritime Employees Union
[2025] FWC 2135
•22 JULY 2025
| [2025] FWC 2135 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Construction, Forestry and Maritime Employees Union
(AG2025/2049)
TRUSTEE FOR PPL (ACT&NSW) DISCRETIONATY TRUST AND CFMEU ACT FINISHING AND FAÇADE TRADES ENTERPRISE AGREEMENT 2021
| Building and construction industry | |
| COMMISSIONER MATHESON | SYDNEY, 22 JULY 2025 |
Application for an order relating to instruments covering new employer and non-transferring employees
The Construction, Forestry and Maritime Employees Union (Applicant) has made an application under s.319 of the Fair Work Act 2009 (Cth) (Act) seeking an order that the Trustee for PPL(ACT&NSW) Discretionary Trust and CFMEU Finishing and Façade Trades Enterprise Agreement 2021[1] (Agreement), a transferrable instrument, applies to new, non-transferring employees of Content Building Group Pty Ltd who perform, or are likely to perform, transferring work within the scope of the Agreement.
Pursuant to s.319(2)(c) of the Act, the Applicant is an employee organisation that is covered by the Agreement.
The Applicant relies on the following grounds in seeking the order referred to above:
The Agreement covered Trustee for PPL (ACT & NSW) Discretionary Trust (Old Employer).
On 1 July 2025 employees of the Old Employer transferred to Content Building Group Pty Ltd (New Employer) who will conduct the business previously conducted by the Old Employer in the Australian Capital Territory.
The director of the New Employer has advised the Applicant that it consents to the order.
The Applicant and Employer have consulted with the transferring employees who do not object to the order.
If the order is not made any non-transferring employees would be covered by the Building and Construction General On-site Award 2020 (Award).
The rates of pay and other non-monetary entitlements provided for under the Agreement are significantly better than those provided for under the Award and no employee will be disadvantaged in relation to their terms and conditions of employment.
The nominal expiry date of the Agreement is 1 August 2024 and the Applicant suggests it is more convenient for the New Employer to have a single agreement covering both transferring and non-transferring employees who perform the transferring work until a new agreement can be negotiated.
There is no evidence that the transferring instrument will have a negative impact on productivity and, to the contrary, it will be more efficient for the New Employer to have a single industrial instrument which covers its entire workforce.
There is no evidence that the New Employer will incur any economic disadvantage as a result of the transferring instrument covering them in relation to non-transferring employees. In particular the Applicant submitted that pursuant to s.313 of the Act, the transferring instrument will cover the New Employer in relation to transferring employees who made up the entirety of the workforce covered by the Agreement at the time of transfer and it is not likely that any such disadvantage would arise.
The only relevant instrument that would otherwise cover non-transferring employees of the New Employer is the Award, the Agreement incorporates the terms of the Award and there is a high degree of business synergy between the two instruments.
The public interest indicates in favour of making the order insofar as it will ensure the employer is able to affect a smooth and efficient transfer of business without disruption to existing employment arrangements and ensure that non-transferring employees are not disadvantaged in contrast to their more established peers in the business.
Legislation
Section 317 of the Act provides:
“317 FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
It is not in contention and I find that there is a transfer of business from the Old Employer to the New Employer.
Sections 319 of the Act relevantly provides:
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.”
Section 319(3) considerations
Section 319(3)(a)(i) - the views of the New Employer
I issued directions on 10 July 2025 (Directions) requiring that the Applicant serve a copy of the Directions and the Form F40 (including any attachments) on the New Employer by 14 July 2025 and file a statutory declaration confirming compliance with the Directions. The Applicant filed a statutory declaration confirming compliance on 11 July 2025.
The Directions required the New Employer to file any submissions in opposition to the application, indicate whether it wished to be heard in relation to the application or otherwise provide its views in relation to application by 18 July 2025.
The New Employer’s sole director filed a statutory declaration stating that the New Employer does not oppose the application.
Section 319(3)(a)(ii) - the views of the employees who would be affected by the order
The Directions required the New Employer to serve a copy of the Directions, the application and accompanying documents on the non-transferring employees who would be affected by the order proposed by the Applicant and to file a statutory direction confirming compliance with the Directions.
The New Employer’s sole director filed a statutory declaration in compliance with the Directions on 14 July 2025 and indicated that at the time of the declaration the New Employer had not employed any new employees other than those who transferred from the Old Employer.
No submissions were received by the Commission in opposition to the application.
Section 319(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Applicant submits there will be no disadvantage to the non-transferring employees, including because:
If the order is not made any non-transferring employees would be covered by the Building and Construction General On-site Award 2020 (Award).
The rates of pay and other non-monetary entitlements provided for under the Agreement are significantly better than those provided for under the Award and no employee will be disadvantaged in relation to their terms and conditions of employment.
Having considered the terms of the instruments I am satisfied that this is the case.
Section 319(3)(c)- The nominal expiry date of the agreement
The Agreement has a nominal expiry date of 1 August 2024.
Sections 319(3)(d), (e) and (f) – negative impact on productivity, significant economic disadvantage and degree of business synergy between instruments
The Applicant submits:
There is no evidence that the transferring instrument will have a negative impact on productivity and, to the contrary, it will be more efficient for the New Employer to have a single industrial instrument which covers its entire workforce.
There is no evidence that the New Employer will incur any economic disadvantage as a result of the transferring instrument covering them in relation to non-transferring employees. In particular the Applicant submitted that pursuant to s.313 of the Act, the transferring instrument will cover the New Employer in relation to transferring employees who made up the entirety of the workforce covered by the Agreement at the time of transfer and it is not likely that any such disadvantage would arise.
The only relevant instrument that would otherwise cover non-transferring employees of the New Employer is the Award, the Agreement incorporates the terms of the Award and there is a high degree of business synergy between the two instruments.
While the rates and conditions under the Agreement are significantly more beneficial than the Award which results in an additional cost impost for the New Employer in respect of non-transferring employees, there would be an administrative burden associated with applying two industrial instruments in respect of employees who are working at the one work site and who are performing the same work given there are differences between the Award and the Agreement.
Section 318(3)(g) – the public interest
The Applicant submitted that the public interest indicates in favour of making the order insofar as it will ensure the employer is able to affect a smooth and efficient transfer of business without disruption to existing employment arrangements and ensure that non-transferring employees are not disadvantaged in contrast to their more established peers in the business.
I am satisfied that it is not against the public interest to grant the orders sought by the Applicant.
Conclusion
Having taken into account the considerations in s.319(3) of the Act, I consider that the following orders should be made:
Pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth), the Commission orders that the Trustee for PPL(ACT&NSW) Discretionary Trust and CFMEU Finishing and Façade Trades Enterprise Agreement 2021 [AE525578, PR 777575] will cover non-transferring employees who:
(a)are employed by Content Building Group Pty Ltd from 22 July 2025; and
(b)who perform, or are likely to perform, transferring work within the scope of the Trustee for PPL(ACT&NSW) Discretionary Trust and CFMEU Finishing and Façade Trades Enterprise Agreement 2021 [AE525578, PR 777575].
Pursuant to s.319(4) of the Fair Work Act 2009 (Cth), order 1 comes into effect at the later of:
(a) the time when the non-transferring employee starts to perform the transferring work for Content Building Group Pty Ltd;
(b) the date of this order.
The order [PR789903] will be issued in conjunction with this decision.
COMMISSIONER
[1] AE525578, PR 777573.
Printed by authority of the Commonwealth Government Printer
<PR789902>
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