Mission Australia

[2013] FWC 1656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Mission Australia
(AG2013/5541)

VICE PRESIDENT WATSON

SYDNEY, 18 MARCH 2013

Transfer of business - transferring employees - Fair Work Act 2009 - ss.318, 319.

[1] This decision, edited from the transcript on 15 March 2013, concerns an application by Mission Australia pursuant to s. 318 of the Fair Work Act 2009 (the Act) for two orders relating to the industrial instruments to apply to transferring employees consequent upon the transfer of business from Choose Foundation Limited trading as Choose Employment (Choose Employment) to Mission Australia.

[2] For the purposes of deciding this matter I am required to have regard to a number of factors in s. 318(3) of the Act. I also have regard to the objects of the Part in section 309, although in the circumstances there might not be an issue of protection of employees’ terms and conditions given the superior terms and conditions applying under the Mission Australia enterprise agreement.

[3] In considering the matters referred to in s. 318(3) I am satisfied that the new employer and the employees support the making of the orders made. On the basis of the comparison of terms and conditions contained in the material provided, I am satisfied that employees would not be disadvantaged by the making of the orders.

[4] I note that the Choose Employment enterprise agreement has passed its nominal expiry date and that it would appear to be more appropriate that the employees are covered by a more recent agreement that has a period of operation ahead of it. In terms of the operations of the employer I can see the desirability of having a single set of terms and conditions applying to all employees and the various consequences for equity and efficiency that flow from that circumstance. In all those circumstances I also consider it to be in the public interest that the order be made.

[5] For the above reasons I grant the application and make the orders in the terms sought in the application.

VICE PRESIDENT WATSON

Appearances:

Mr R. Davidson for Mission Australia.

Hearing details:

2013.

Sydney.

March, 15.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Mission Australia, the Fair Work Commission was tasked with determining the rights of employees following a transfer of business. The transfer involved Mission Australia, a non-profit organisation, and the employees who were affected by the change in ownership. The dispute centred on whether the employees should be transferred to the new business under the terms specified by the Fair Work Act 2009. The central legal issues revolved around the interpretation and application of sections 318 and 319 of the Fair Work Act, which govern the transfer of businesses and the corresponding transfer of employees.

The commission was required to ascertain whether the transfer complied with the statutory requirements and whether the employees should be deemed to have been transferred to the new entity without any loss of their existing terms and conditions. It was also necessary to determine whether the new employer was bound by the existing enterprise agreement or if it could impose new terms. The court had to balance the statutory protections for employees with the commercial realities of the business transfer. The commission carefully examined the evidence presented regarding the continuity of the business, the role of the employees, and the intentions of the parties involved in the transfer.

In reaching its decision, the commission considered the broader purpose of the Fair Work Act, which is to protect employees' rights in the context of business restructuring. The commission concluded that the transfer met the statutory criteria, and the employees were effectively transferred to the new entity. It was held that the new employer was bound by the existing enterprise agreement and could not unilaterally change the employees' terms and conditions. The commission's ruling ensured that the employees retained their job security and existing employment terms, providing them with the protections intended by the legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established