Finance Sector Union v PP Consultants - [1999] FCA 1251

FEDERAL COURT OF AUSTRALIA
Finance Sector Union of Australia v PP Consultants Pty Ltd [1999] FCA 1251
INDUSTRIAL LAW – Application of award – Transmission of business – Bank closed branch and appointed agent to conduct similar activities in conjunction with agent’s pharmacy business – Whether award continued to apply – Application of words “any successor, assignee or transmittee … to or of the business or part of the business of an employer” – Test for determining issue of transmission – Whether it is necessary that a “part of the business” be an independently viable business.
Re Australian Industrial Commission; ex parte Transport Officers Federation (1990) CLR 216 applied
North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 followed
Workplace Relations Act1996, s149(1)(d)
FINANCE SECTOR UNION OF AUSTRALIA v PP CONSULTANTS PTY LIMITED t/as BYRON BAY PHARMACY
N504 of 1999
WILCOX, RYAN & MADGWICK JJ
SYDNEY
10 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N504 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FINANCE SECTOR UNION OF AUSTRALIA
Appellant

AND:

PP CONSULTANTS PTY LIMITED t/as BYRON BAY PHARMACY
Respondent

JUDGES:

WILCOX, RYAN and MADGWICK JJ

DATE OF ORDER:

10 SEPTEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be upheld and the orders made by Mathews J on 12 May 1999 be set aside.
2.The matter be remitted to Mathews J for further hearing and determination.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N504 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FINANCE SECTOR UNION OF AUSTRALIA
Appellant

AND:

PP CONSULTANTS PTY LIMITED t/as BYRON BAY PHARMACY
Respondent

JUDGES:

WILCOX, RYAN and MADGWICK JJ

DATE:

10 SEPTEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

This appeal involves the question whether, by force of s149(1)(d) of the Workplace Relations Act 1996, the respondent, PP Consultants Pty Ltd ("PP Consultants"), is bound by an award made by the Australian Industrial Relations Commission ("the Commission"), the Banking Industry – St.George Bank Employees Award 1995, in respect of the employment of Patricia Gail Moffat. The appellant, Finance Sector Union (“FSU”) claims PP Consultants is so bound, as the “successor, assignee or transmittee” of part of the business of the St.George Bank Limited (“the bank”).
The facts
Until September 1997, the bank operated one of its branches from premises in a shopping centre at Byron Bay, New South Wales. PP Consultants operated a pharmacy in the same shopping centre.
In mid-1997 the bank was minded to close its branch and, to that end, commenced negotiations with Mr Bartholomew Vanarey, a principal of PP Consultants, for that company to conduct from its premises a "branch agency office together with automatic teller machine (‘ATM’) facilities". On 10 September 1997 an agreement was concluded between the bank and PP Consultants (in the agreement called "the Bragent") and Mr and Mrs Vanarey (in the agreement called…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finance Sector Union v PP Consultants

Details

AGLC: Finance Sector Union of Australia v Pp Consultants Pty Ltd [1999] FCA 1251
Case: [1999] FCA 1251
Decision Date: 10 SEPTEMBER 1999

CaseChat Overview and Summary

The Finance Sector Union, acting on behalf of its members, brought a case against PP Consultants in the Federal Court of Australia. The case revolved around whether an award applied to PP Consultants, which had been appointed as an agent by a bank to conduct certain activities previously performed by the bank at a closed branch, in conjunction with its own pharmacy business. The Union argued that the award should continue to apply to PP Consultants, contending that it was a successor or assignee of the bank’s business. Conversely, PP Consultants argued that the award did not apply to them as their activities were not a part of the bank’s business but rather a separate enterprise.

The central legal issue before the court was the interpretation of the award's provisions concerning the applicability to "any successor, assignee or transmittee … to or of the business or part of the business of an employer". Specifically, the court had to determine whether a part of the business needed to be an independently viable business to constitute a transmission of the award's applicability. Additionally, the court examined whether the activities conducted by PP Consultants were sufficiently linked to the bank’s previous operations to warrant the continued application of the award.

In its decision, the court found that the test for determining the transmission of an award's applicability should not require the part of the business to be an independently viable business. Instead, the focus should be on whether the activities conducted by the agent were a continuation or substantially similar to the employer’s previous business. The court held that the award's terms could extend to cover such activities if they were closely related to the original business. The court further determined that the lower court had erred in its interpretation and application of these principles. As a result, the appeal was upheld, and the orders made by Mathews J were set aside. The matter was remitted to Mathews J for further hearing and determination in light of the court's findings.

Orders

Orders of the court

1. The appeal be upheld and the orders made by Mathews J on 12 May 1999 be set aside.

2. The matter be remitted to Mathews J for further hearing and determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N504 of 1999

BETWEEN:	FINANCE SECTOR UNION OF AUSTRALIA Appellant
AND:	PP CONSULTANTS PTY LIMITED t/as BYRON BAY PHARMACY Respondent
JUDGES:	WILCOX, RYAN and MADGWICK JJ
DATE OF ORDER:	10 SEPTEMBER 1999
WHERE MADE:	SYDNEY

JUDGES:	WILCOX, RYAN and MADGWICK JJ
DATE:	10 SEPTEMBER 1999
PLACE:	SYDNEY