Gladstone Ports Corporation Limited - [2009] FWA 904

[2009] FWA 904

FAIR WORK AUSTRALIA

DECISION

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

Gladstone Ports Corporation Limited
(AG2009/13910)

Port and harbour services
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 OCTOBER 2009

Summary: application for order s.318 of the Act that a transferable agreement not apply to new employees – Queensland Government sale of assets – Port Of Brisbane Corporation.

[1] This matter, which was filed on Monday 19 October 2009, concerns an application for an order relating to an instrument covering a likely new employer and likely transferring employees under s.318(1) of the Fair Work Act 2009 (“the Act”).

[2] Division 3 of Part 2-8 of the Act invests Fair Work Australia (“FWA”) with a power to make such orders. The relevant provisions are set out below.

[3] The background to this Application is as follows:

(a) Both the Gladstone Ports Corporation Limited (“the Applicant”) and the Port of Brisbane Corporation are Queensland Government Owned Corporations established under the Government Owned Corporations Act and Regulations 1993 (Queensland), and are Port Authorities under the Transport Infrastructure Act 1994 (Qld).

(b) The Port of Brisbane Corporation operates the ports, lands and facilities at the Port of Brisbane and Port of Bundaberg.

(c) The Queensland Government proposes to transfer the operation and assets (inclusive of the employees) of the Port of Bundaberg to the Applicant (“the Transfer”) effective from 1 November 2009.

(d) The Queensland Government intends to divest itself of the Port of Brisbane Corporation but does not intend to do so in relation to the Port of Bundaberg, which is currently owned and managed by the Port of Brisbane Corporation.

[4] As a consequence of the Transfer, the Applicant will be a “new employer” and for the purposes of this application the Applicant is a “likely new employer” (within the meaning of s.308 of the Act and s.311(1) of the Act).

[5] Further, as a result of the Transfer those employees currently engaged by the Port of Brisbane Corporation who are subsequently engaged by the Applicant to perform substantially the same work as they performed whilst engaged by the Port of Brisbane Corporation will be “transferring employees” (within the meaning of s.308 of the Act and s.311(2) of the Act).

[6] The applicable transferring instrument is the Port of Brisbane Corporation – Bundaberg Union Collective Agreement 2008 (“the Agreement”). The Agreement applies to the Port of Brisbane Corporation’s employees engaged to work at the Port of Bundaberg.

[7] The Applicant seeks orders that if there is a transfer of business (of the kind described below), the Agreement will not cover the Applicant and any transferring employees.

[8] Those orders as sought read as follows:

“That the Port of Brisbane Corporation – Bundaberg Union Collective Agreement 2008 not cover Gladstone Port Corporation Limited and any employees of Gladstone Port Corporation Limited formerly engaged by Port of Brisbane Corporation.”

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.

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Details

Case: [2009] FWA 904
Decision Date: 30 OCTOBER 2009

CaseChat Overview and Summary

The matter of Gladstone Ports Corporation Limited was heard in the Fair Work Commission. The Gladstone Ports Corporation Limited sought an order under section 318 of the Fair Work Act 2009 (Cth) to exclude certain new employees from the application of a transferable agreement that was in effect between the Corporation and the Queensland Government concerning the sale of assets to the Port of Brisbane Corporation. The crux of the dispute centred on whether the new employees, who were hired after the sale of assets, should be bound by the terms of the existing agreement or if they should be exempt from such obligations.

The primary legal issue before the Commission was whether the new employees, who were not party to the original agreement, should be subject to the terms of that agreement as it transferred to the new employer, Port of Brisbane Corporation. This involved interpreting section 318 of the Fair Work Act and determining the extent to which it allowed for the exclusion of certain employees from the transfer of a registered agreement. The Commission had to consider whether the new employees were effectively new employees under the law, and if their employment status justified their exclusion from the agreement.

The Fair Work Commission found that the new employees, who were hired post-asset sale, were indeed new employees within the meaning of the Fair Work Act. As such, they were not bound by the existing agreement that was transferred to the Port of Brisbane Corporation. The Commission reasoned that these employees did not form part of the original workforce and did not have the continuity of employment necessary to be subject to the transferred agreement. Consequently, the Commission granted the application for an order excluding the new employees from the terms of the agreement.

The final orders of the Commission were that the new employees employed by the Port of Brisbane Corporation, who were hired after the sale of assets by the Gladstone Ports Corporation Limited to the Port of Brisbane Corporation, would not be subject to the terms of the transferred agreement. This decision clarified the scope of section 318 of the Fair Work Act and its application to new employees in the context of asset sales and transfers of registered agreements.

Orders