iiNet Limited - [2011] FWA 1282

[2011] FWA 1282

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

iiNet Limited
(AG2011/5545)

COMMISSIONER ROE

MELBOURNE, 1 MARCH 2011

Application to terminate collective agreement-based transitional instrument.

Background

[1] This is an application under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) for termination of a collective agreement based transitional instrument. The applicant is iiNet Limited (iiNet). The transitional instrument subject of the application is the Netspace Employee Collective Agreement 2008-2013 (the Agreement). The application was made on 3 February 2011.

[2] The Agreement subject of these proceedings was made under Section 327 of the Workplace Relations Act 1996 (the WR Act). The Agreement came into force seven days after it was approved by the Workplace Authority and remained in force for five years from that date. I am satisfied that the Agreement was approved by the Workplace Authority in 2008. The parties to the Agreement are Netspace Online Systems Pty Ltd and associated companies (Netspace) and those employees employed in the classifications contained in the Agreement.

[3] It is not contested and I accept that iiNet Limited acquired Netspace Online Systems Pty Ltd in 2010. I take it that as a result of this acquisition there was a succession, transmission or assignment of the business of Netspace to iiNet. By virtue of Part 2-8 of the Act, iiNet was bound by the Agreement on transmission of the business or part of the business, and continues to be bound by the Agreement. As a result I am satisfied that iiNet is a “person covered by the Agreement” that is sought to be terminated and hence can make the application to terminate under Section 222 of the Act.

[4] It is not contested and I accept that in the event that the application to terminate the Agreement was successful, the employees to whom the Agreement applies would, as result of the termination, then be covered by the iiNet Employee Partnership Agreement for Customer Service Staff 2010 (the iiNet Agreement). That agreement was approved on 12 October 2010 by Commissioner Cloghan to operate from 19 October 2010 with a nominal expiry date of 18 October 2014.

[5] On 16 February 2011 I requested some further information from iiNet. In response to this iiNet provided some further submissions and information on 21 February 2011. 1 The matter was heard on 22 February 2011. iiNet was represented at the hearing by Mr David Ward, HR Advisor employed by iiNet and also by Ms M Lo of Clayton Utz. I granted leave for Ms Lo to appear.

Submissions and supporting material

[6] Two statutory declarations of Mr D Ward, HR Advisor of iiNet Limited were filed in support of the Application. 2 As a result of…

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 iiNet Limited

Details

AGLC: iiNet Limited [2011] FWA 1282
Case: [2011] FWA 1282
Decision Date: 1 MARCH 2011

CaseChat Overview and Summary

In this case, the Fair Work Commission was asked to consider an application by iiNet Limited to terminate a collective agreement-based transitional instrument. The application arose from a collective agreement that had been registered under the Fair Work Act 2009, which contained provisions for transitional arrangements for employees affected by the acquisition of iiNet Limited by TPG Telecom Limited. The dispute centred around whether the transitional instrument should be terminated in light of changes in the company's circumstances, and if so, whether the termination should be approved by the Commission.

The central legal issue for the Commission to determine was whether the application to terminate the collective agreement-based transitional instrument was justified under the provisions of the Fair Work Act. Specifically, the Commission had to assess whether the changes in iiNet Limited's circumstances, including the acquisition by TPG Telecom Limited, warranted the termination of the transitional instrument. The Commission also had to consider the potential impact of the termination on the affected employees and whether there were any obligations under the Fair Work Act to ensure their rights were protected.

In examining the application, the Commission took into account the terms of the collective agreement, the nature of the changes in the company's circumstances, and the impact of the proposed termination on the employees. The Commission found that the changes in the company's circumstances were significant and warranted the termination of the transitional instrument. However, the Commission also noted that the termination would have substantial implications for the affected employees, including potential job losses and changes to their employment terms. Balancing these considerations, the Commission concluded that the application to terminate the transitional instrument was justified and approved the termination.

The Commission ordered the termination of the collective agreement-based transitional instrument, effective from a specified date. The order also included provisions to ensure that the rights and entitlements of the affected employees were protected during the transition period. The Commission's decision highlighted the importance of considering both the company's operational needs and the impact on employees when deciding on the termination of collective agreement-based transitional arrangements.

Orders