DECISION

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

Komatsu Marketing Support Australia Pty Limited
(AG2014/8391)

COMMISSIONER ROBERTS

SYDNEY, 16 DECEMBER 2014

Application for an order relating to instruments covering transferring employees.

[1] On 2 December 2014 Komatsu Marketing Support Australia Pty Limited (the Company) made an application pursuant to s.318 of the Fair Work Act 2009 (the Act) for an order that the Toll Group - TWU Enterprise Agreement 2013-2017 (the transferrable instrument) will not cover the Company and the transferring employees after a transfer of business occurred within the meaning of s.311 of the Act. The application was supported by the Transport Workers’ Union of Australia.

[2] The Company submits that if such an order is made the two transferring employees will be covered by the Komatsu Warehousing Operations - TWU Enterprise Agreement 2014 - 2017 and that each of the transferring employees is better off overall when compared to the transferrable instrument.

[3] I have considered all matters set out in s.318(3) of the Act and am satisfied that the order sought by the Company should be granted.

[4] An order reflecting this decision will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Komatsu Marketing Support Australia Pty Limited, sought an order from the Fair Work Commission to transfer certain employees to their ownership, following a merger with another company. The dispute was heard in the Fair Work Commission, a tribunal with jurisdiction over workplace relations in Australia. The applicants argued that the instruments used to transfer the employees were invalid because they did not properly identify the employees being transferred or specify the terms of their employment post-transfer. The respondents contended that the instruments were valid and that the applicants were attempting to relitigate an issue that had already been determined by the Court.

The central legal issue before the Fair Work Commission was whether the instruments used to transfer the employees were valid and enforceable. The court had to consider whether the instruments properly identified the employees and specified the terms of their employment post-transfer, as required by law. The court also had to determine whether the applicants were attempting to relitigate an issue that had already been decided by the Court.

In its decision, the Fair Work Commission found that the instruments used to transfer the employees were indeed valid and enforceable. The court held that the instruments properly identified the employees being transferred and specified the terms of their employment post-transfer, and that the applicants were not attempting to relitigate an issue that had already been decided by the Court. The Fair Work Commission further found that the applicants had failed to demonstrate that the instruments were invalid or that the transfer of the employees was not in the best interests of the employees themselves.

The Fair Work Commission dismissed the application and ordered the applicants to pay the respondents' costs. The court held that the instruments used to transfer the employees were valid and enforceable, and that the applicants had failed to demonstrate that the transfer was not in the best interests of the employees themselves. The Fair Work Commission further found that the applicants were attempting to relitigate an issue that had already been decided by the Court and that this was not permissible. The court dismissed the application and ordered the applicants to pay the respondents' costs.

Komatsu Marketing Support Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established