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
(AG2021/4466)

Electrical contracting 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 – NSW Enterprise Agreement 2019-2020 (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) NSW 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 the case of ETS Infrastructure Management Pty Ltd, the matter before the Fair Work Commission involved a dispute concerning the application for an order relating to instruments covering a new employer and non-transferring employees under the Fair Work Act 2009. The applicant sought to ensure that certain employees would not be subject to the terms and conditions of employment set out in a new enterprise agreement. The dispute centred around the interpretation and application of the transition provisions within the Fair Work Act, specifically section 168 and related sections, in the context of a transfer of business.

The primary legal issue the Commission had to address was whether the terms of the new enterprise agreement could be applied to employees who were not transferring with the business, despite the provisions of section 168 of the Fair Work Act. This section generally protects the terms and conditions of non-transferring employees from being altered by a new enterprise agreement unless specific conditions are met. The applicant argued that the non-transferring employees should remain under the terms of their previous enterprise agreement, while the respondent contended that the new agreement should apply to all employees.

The Commission examined the statutory framework and relevant case law to determine the appropriate interpretation of section 168. It found that the non-transferring employees were indeed protected under the terms of their existing enterprise agreement. The Commission concluded that the new enterprise agreement could not alter the terms and conditions of employment for these employees unless the specific conditions outlined in section 168 were met, which had not been demonstrated in this case. Therefore, the Commission made an order that the terms of the new enterprise agreement would not apply to the non-transferring employees.

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