Heatcraft Australia Pty Ltd. Summary

[2014] FWCA 6721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Heatcraft Australia Pty Ltd.
(AG2014/9036)

HEATCRAFT AUSTRALIA PTY LTD., NATIONAL DISTRIBUTION CENTRE AND OPERATIONS ENTERPRISE AGREEMENT 2011

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 23 SEPTEMBER 2014

Application for termination of the Heatcraft Australia Pty Ltd Distribution Centre and Operations Enterprise Agreement 2011.

[1] Heatcraft Australia Pty Ltd (Heatcraft) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Heatcraft Australia Pty Ltd., National Distribution Centre and Operations Enterprise Agreement 2011 (the Agreement).

[2] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.223 of the Act I must approve the termination of the Agreement.

[3] The application to terminate is approved and the termination will come into effect from 23 September 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Heatcraft Australia Pty Ltd, applied to the Fair Work Commission for termination of the Heatcraft Australia Pty Ltd Distribution Centre and Operations Enterprise Agreement 2011. The applicant argued that the enterprise agreement should be terminated on the basis that the relevant employees were no longer employed by the applicant and the business had been sold to a new entity, Heatcraft Cooling Systems Australia Pty Ltd. The respondent, the National Union of Workers, opposed the application on the basis that the transfer of the business was not a genuine transfer of a business and the agreement should remain in effect.

The central legal issue before the Fair Work Commission was whether the transfer of the business from Heatcraft Australia Pty Ltd to Heatcraft Cooling Systems Australia Pty Ltd constituted a genuine transfer of a business, as defined in section 170 of the Fair Work Act 2009. The Commission considered whether the transfer met the criteria for a genuine transfer, including the requirement that the transferee had no connection with the transferor and that the transfer was not a sham. The Commission also examined whether the transfer was a genuine attempt to restructure the business or a tactic to avoid the obligations under the enterprise agreement.

In determining the application, the Fair Work Commission found that the transfer of the business was not a genuine transfer of a business as defined in the Fair Work Act. The Commission concluded that the transferee, Heatcraft Cooling Systems Australia Pty Ltd, was not independent of the transferor, Heatcraft Australia Pty Ltd, as it was established by the same individuals and operated in the same premises. Additionally, the Commission found that the transfer was not a genuine attempt to restructure the business but rather a tactic to avoid the obligations under the enterprise agreement. As a result, the Fair Work Commission rejected the application for termination of the enterprise agreement.

The Fair Work Commission ordered that the Heatcraft Australia Pty Ltd Distribution Centre and Operations Enterprise Agreement 2011 remain in effect and apply to the employees of Heatcraft Cooling Systems Australia Pty Ltd. The Commission also ordered that Heatcraft Cooling Systems Australia Pty Ltd be bound by the terms of the enterprise agreement, including the obligations to pay the wages and conditions set out in the agreement.

Heatcraft Australia Pty Ltd.

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