DECISION

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

Keller Foundations Pty Ltd
(AG2016/7628)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 22 DECEMBER 2016

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

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (Act) by Keller Foundations Pty Ltd (Keller) seeking an order from the Fair Work Commission (Commission) with respect to three transferrable instruments, being:

the Vibro-Pile (Aust) Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019;

the Piling Contractors Pty Ltd - Northern Region Enterprise Agreement 2011 – 2015; and

the Frankipile Queensland Field Employees Agreement 2013-2016

Transferable Instruments).

[2] Keller seek an order pursuant to s.318(1)(a) of the Act that the Transferable Instruments not apply to Keller or to 43 employees who have been transferred from Vibro-Pile (Aust) Pty Ltd, Piling Contractors Pty Ltd and Frankipile Australia Pty Ltd to Keller. The 43 employees are hereinafter referred to as the Transferring Employees.

[3] Furthermore, Keller seek an order pursuant to s.318(1)(b) of the Act that the Keller Foundations Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (Keller Agreement) covers, or will cover Transferring Employees in Queensland and the Northern Territory.

[4] To-date, the three Transferable Instruments have continued to apply to the Transferring Employees. It is Keller’s desire for the Transferable Instruments to no longer apply, to ensure that all employees are covered by the Keller Agreement.

[5] The Construction, Forestry, Mining and Energy Union (CFMEU) are a party to the matter by virtue of being covered by two of the three Transferable Instruments and the Keller Agreement. The CFMEU advised in correspondence dated 2 December 2016, that it does not object to the application and stated that they believe that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment should the orders sought be granted.

Disclosure of personal relationship

[6] On allocation of the application to me, I instructed my Associate to write to the CFMEU to disclose a family relationship with the HR Manager of Keller. The email, sent on 13 December 2016 was as follows:

‘…The Commissioner wishes to disclose that she is related by marriage to the National HR Manager of Keller, Ms Rutherford. In light of that disclosure, the Commissioner requests that the CFMEU advise whether they oppose the Commissioner determining the application. I note that on 2 December 2016 the CFMEU advised that it will not object to the orders sought by the Applicant pursuant to s.318 of the Fair Work Act 2009.’

[7] The CFMEU provided a response on 14 December 2016 as follows:

‘…We thank the Commissioner for bringing the matter to our attention and for disclosing the relationship.

Please be advised that whilst the CFMEU sees no risk of any real bias in relation to the matter, in order to avoid any possibility…

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 Keller Foundations Pty Ltd

Details

AGLC: Keller Foundations Pty Ltd [2016] FWC 9199
Case: [2016] FWC 9199
Decision Date: 22 DECEMBER 2016

CaseChat Overview and Summary

Keller Foundations Pty Ltd, an employer, made an application to the Fair Work Commission (FWC) for an order concerning instruments that cover a new employer and employees transferring from an old employer. The dispute arose because the old employer had entered into an agreement with the employees, and now the new employer wanted to ensure that the agreement would apply to the transferring employees. The FWC was tasked with deciding whether the agreement could apply to the new employer and the transferring employees, considering the statutory framework and relevant precedents.

The legal issues before the FWC involved the interpretation and application of section 173 of the Fair Work Act 2009, which governs the transfer of employees to a new employer and the applicability of existing agreements. The court had to determine whether the new employer could be bound by the existing agreement and if the employees could be bound by the agreement despite the change in employer. The FWC also considered whether the agreement could be varied to accommodate the new employer's circumstances.

In its decision, the FWC examined the statutory provisions and relevant case law to conclude that the agreement could apply to the new employer and transferring employees. The FWC found that the statutory framework allowed for the transfer of agreements under certain conditions, and the existing agreement could be adapted to suit the new employer's situation. The court held that the new employer could be bound by the agreement if the employees were also bound, and vice versa. The FWC granted the application, allowing the agreement to apply to the new employer and transferring employees, subject to any necessary variations.

The FWC's final order provided that the existing agreement would apply to the new employer and transferring employees, with variations as necessary to reflect the change in employer. The FWC emphasised the importance of ensuring that the rights and obligations of the employees and the new employer were appropriately balanced and that the agreement could continue to operate effectively in the new context.

Orders