DECISION

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

ETS Infrastructure Management Pty Ltd
(AG2021/4463)

Agricultural industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 APRIL 2021

Application for an order relating to instruments covering new employer and non-transferring employees in agreements.

[1] ETS Infrastructure Management Pty Ltd has made an application pursuant to s.319 of the Fair Work Act 2009 (FW Act) for an order that the Eastern Tree Service Enterprise Agreement (Tasmania) 2015-16 (the Agreement) covers the Applicant in respect non-transferring employees who perform the work contained within the classification structure of the Agreement.

[2] The Applicant has filed a statutory declaration in support of the application. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) Tasmania is covered by the agreement and supports the application.

[3] I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the FW Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the FW Act, support the making of the order.

[4] An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved ETS Infrastructure Management Pty Ltd and the Transport Workers Union of Australia. The dispute arose from the application by ETS for an order relating to instruments covering the new employer and non-transferring employees within agreements. The case was heard in the Fair Work Commission, reflecting the nature of the employment and industrial relations issue at hand.

The primary legal issue that the court had to resolve was whether the instruments governing the employment conditions of the non-transferring employees were valid and enforceable under the relevant industrial legislation. Specifically, the court needed to determine if these instruments could be applied to the new employer and if they complied with the necessary legal standards. This involved examining the transfer of business Australia provisions and their applicability to the instruments in question.

In reaching its decision, the court considered the statutory framework governing employment transfers and the specific terms of the instruments. It found that the instruments were indeed valid and enforceable as they met the criteria set out in the legislation. The court concluded that the transfer of business provisions did not invalidate the instruments, and they could be applied to the new employer without breaching any legal requirements. Consequently, the application by ETS Infrastructure Management Pty Ltd was successful, and the court ordered that the instruments be enforced as per their terms.

The final orders included the enforcement of the instruments in relation to the new employer and the non-transferring employees, ensuring that their employment conditions were upheld in accordance with the law. This decision provided clarity on the application of transfer of business provisions to employment instruments and reinforced the enforceability of such instruments under the relevant industrial relations legislation.

ETS Infrastructure Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established