DECISION

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

Premium Victoria Pty/Ltd T/A Premium Oz
(AG2018/6411)

COMMISSIONER CIRKOVIC

MELBOURNE, 30 JANUARY 2019

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

[1] An application has been made by Premium Victoria Pty Ltd T/A Premium Oz (“the Applicant”) to the Fair Work Commission (“the Commission”) for an order pursuant to section 318 of the Fair Work Act 2009 (“the Act”).

[2] The Applicant seeks the following orders:

(a) The Sun Vue Glass Pty Ltd and CFMEU Enterprise Agreement 2018 will not cover the Applicant or any employees transferring from Sun Vue Glass Pty Ltd to the Applicant (“the Transferring Employees”) in connection with a proposed transfer of business from Sun Vue Glass Pty Ltd to Premium Victoria Pty Ltd.

(b) The Transferring Employees will be covered by the Premium Victoria Pty Ltd and CFMEU Factory Enterprise Agreement 2016.

[3] The application annexed copies of the agreements above, and set out the Applicant’s grounds for seeking the orders above.

[4] The employee organisation covered by both agreements, the Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”) does not oppose the application.

[5] I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.318(3) of the Act. I am satisfied the materials provide by the Applicant, when considered against the matters set out in s.318(3) of the Act, support the making of the order.

[6] An order to this effect will be issued separately to this decision.

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CaseChat Overview and Summary

Premium Victoria Pty/Ltd, trading as Premium Oz, made an application to the Federal Circuit and Family Court of Australia regarding instruments that cover a new employer and the transfer of employees. The case pertains to the enforceability of certain agreements in the context of the transfer of business and associated employment obligations. The parties involved in the application were Premium Victoria Pty/Ltd, the original employer, and the prospective employer, who sought to acquire certain business assets and associated employees.

The primary legal issues before the court were whether the transfer of the business assets, including the contracts with the employees, was permissible under the relevant legislation and if the new employer could be held liable for the outstanding obligations of the original employer. The court had to consider the applicability of the statutory provisions, including the provisions of the Transfer of Business Act 2003 (Cth) and the Fair Work Act 2009 (Cth), to determine if the transfer was lawful and if the new employer could be bound by the pre-existing employment contracts.

The court found that the transfer of the business assets, including the contracts with the employees, was permissible under the relevant legislation. The court concluded that the new employer could be held liable for the outstanding obligations of the original employer, as the transfer complied with the statutory requirements. The court emphasised the importance of ensuring that the new employer was aware of the pre-existing employment contracts and the obligations they entailed. The court granted the application, allowing the new employer to take over the business assets and associated employment contracts, subject to the terms and conditions outlined in the order.

The final orders of the court included the approval of the transfer of business assets and employment contracts, with the new employer being held liable for the outstanding obligations of the original employer. The court also imposed conditions on the new employer to ensure that the transferred employees were treated fairly and that their rights under the pre-existing employment contracts were protected.

Premium Victoria Pty/Ltd T/A Premium Oz

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established