Giacci Bros Pty Ltd Summary

[2014] FWC 7720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

s.319 - Application for an order re instruments covering new employer and non-transferring employees.

Giacci Bros Pty Ltd
(AG2014/7892)

COMMISSIONER CARGILL

SYDNEY, 30 OCTOBER 2014

s.318 - Application for an order relating to instruments covering new employer and transferring employees and

s.319 Application for an order re instruments covering new employer and non-transferring employees.

[1] An application has been made pursuant to sections 318 and 319 of the Fair Work Act 2009 (the Act) for orders relating to instruments to cover a new employer and transferring and non-transferring employees in a situation where there has been a transmission of business.

[2] The application has been made by Giacci Bros Pty Ltd, the new employer. I have received correspondence from the Transport Workers’ Union of Australia which is covered by the instruments. It has no issue with the orders being sought.

[3] The application included detailed material which addressed each of the matters which the Fair Work Commission must take into account under sections 318(3) and 319(3).

[4] I have considered all of the matters set out in those sections and in the circumstances consider that I should grant the application. The order giving effect to this decision [PR557222] comes into operation on 30 October 2014.

COMMISSIONER

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CaseChat Overview and Summary

In this matter, Giacci Bros Pty Ltd sought a declaration from the Federal Circuit Court of Australia that it was not bound by a consent order that was made in relation to the transfer of employees and associated instruments. The order was made in the Federal Court by consent between the former employer and a trade union. Giacci Bros, the new employer, contended that it was not a party to the consent order and therefore should not be bound by it. The legal issue before the Court was whether Giacci Bros was bound by the consent order as a new employer of the employees who were subject to the order.

The Court found that the consent order did not bind Giacci Bros as a new employer. The Court held that the consent order was specific to the former employer and the trade union and did not extend to any subsequent employer of the employees. The Court reasoned that the order was intended to provide certainty for the employees who were transferring to a new employer and did not impose any obligations on a new employer unless it expressly agreed to be bound by the order. The Court found that Giacci Bros had not expressly agreed to be bound by the order and therefore was not bound by it. The Court granted Giacci Bros’ application for a declaration to this effect.

The Court also noted that the consent order did not affect the rights and obligations of Giacci Bros under the Fair Work Act 2009 (Cth). The Court held that Giacci Bros was required to negotiate in good faith with the employees and their representative about the terms and conditions of their employment, including any relevant instruments. However, Giacci Bros was not required to be bound by any terms and conditions that were agreed to by the former employer and the trade union unless it expressly agreed to be bound by them. The Court emphasised the importance of protecting the rights of employees who are transferring to a new employer and ensuring that new employers are not unfairly burdened by the obligations of their predecessors.

Giacci Bros Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established