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
(AG2021/4465)

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 Falbury Pty Ltd t/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2018-2021 (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, Electrical, Energy and Services Division (ETU) Queensland 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, the applicant, and several respondents, including the Australian Manufacturing Workers Union. The dispute centred around instruments, specifically the Enterprise Agreements executed between the parties, and the effect these agreements had on a new employer who acquired certain business operations and on employees who did not transfer to the new employer. The application was heard in the Fair Work Commission.

The primary legal issue was whether the enterprise agreements, which were registered under the Fair Work Act, remained applicable to the new employer and the non-transferring employees. The court needed to determine if the transfer of business operations triggered a new agreement or if the existing agreements could continue to apply under the legislative framework provided by the Fair Work Act. The crux of the matter lay in interpreting the provisions of the Act that pertain to the transfer of business and the applicability of existing agreements.

In its decision, the court examined the statutory provisions and the specific terms of the enterprise agreements in question. It found that the agreements did not automatically terminate upon the transfer of business but could continue to apply to the new employer and non-transferring employees, provided certain conditions were met. The court held that the agreements could apply if the new employer was willing to adopt the terms and if the employees were willing to be bound by those terms. The court emphasised the importance of the parties' consent and the continuity of employment conditions for the agreements to remain effective. The application was ultimately dismissed as the court found that the existing agreements could indeed apply under the specified circumstances.

The court made no further orders, leaving the applicability of the enterprise agreements to be determined in accordance with the conditions outlined in its decision.

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