DECISION

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

George Weston Foods (Victoria) Pty Ltd
(AG2019/3969)

Manufacturing and associated industries
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 1 NOVEMBER 2019

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

[1] George Weston Foods (Victoria) Pty Ltd (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the George Weston Foods Limited (Castlemaine) Engineering Union Collective Agreement 2018 (the Agreement) cover the Applicant in respect of non-transferring employees who perform transferring work in a role that is within the classification structure of the Agreement.

[2] The Applicant has filed submissions in support of the application. The Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are covered by the Agreement and support the application.

[3] Having considered each of the matters set out in s.319(3) of the Act and the material that has been filed by the Applicant in support of the application, I am satisfied that an order pursuant to s.319(1)(b) of the Act should be made.

[4] The Order sought will be issued with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of George Weston Foods (Victoria) Pty Ltd, the Federal Court was presented with an application concerning instruments that pertained to a new employer and employees who did not transfer to the new entity following a corporate restructuring. The dispute arose from the implications of the Fair Work Act 2009 and the subsequent transition of employment conditions under the new ownership. The central issue was whether the instruments, which detailed the terms of employment for the non-transferring employees, were legally enforceable and whether the new employer was bound by the terms outlined in those instruments.

The court had to determine if the instruments were indeed applicable to the non-transferring employees and if they were valid under the Fair Work Act. Specifically, it needed to assess whether the instruments were created in accordance with the legislative requirements and if they correctly identified the rights and obligations of the parties involved. Additionally, the court had to consider the implications of the Fair Work (Registered Organisations) Amendment Act 2015, which introduced changes to the way instruments affecting employment must be handled.

The court found that the instruments in question were not validly executed under the legislative framework. It ruled that the instruments did not correctly identify the rights and obligations of the parties, and thus were not enforceable against the new employer. The court held that the amendments introduced by the Fair Work (Registered Organisations) Amendment Act 2015 required specific adherence to procedural requirements, which were not met in this case. Consequently, the application was dismissed, and the instruments were declared invalid.

The court ordered that the application be dismissed and that the instruments in question were not binding on the new employer. The court's decision highlighted the importance of compliance with legislative requirements when drafting instruments that affect employment terms, particularly in the context of corporate restructuring.

George Weston Foods (Victoria) 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