DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Saputo Dairy Australia Pty Ltd
(AG2018/2265)

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 13 NOVEMBER 2018

[1] Saputo Dairy Australia Pty Limited (“the Applicant”) has made an application pursuant to s.319 of the Fair Work Act 2009 (“the Act”) for an order that the Murray Goulburn Co-Operative Co. Limited (Victorian Sites) National Union of Workers Enterprise Agreement 2017 (“the Agreement”) covers the Applicant in respect of non-transferring employees who perform the work contained within the classification structure of the Agreement.

[2] The Applicant has filed a statutory declaration in support of the application. The National Union of Workers (“NUW”) is covered by the Agreement and supports the application.

[3] I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the Act, support the making of the order.

[4] An order to this effect will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case involves Saputo Dairy Australia Pty Ltd, which sought an order that the Murray Goulburn Co-Operative Co. Limited (Victorian Sites) National Union of Workers Enterprise Agreement 2017 covers the Applicant in respect of non-transferring employees performing work within the classification structure of the Agreement. The matter was heard in the Fair Work Commission, which is Australia's industrial relations tribunal. The Applicant argued that the Agreement should apply to its non-transferring employees, who were previously employed by Murray Goulburn Co-Operative Co. Limited before it ceased operations and was acquired by Saputo Dairy Australia Pty Ltd.

The legal issues before the Commission were whether the Agreement could be extended to cover the Applicant's non-transferring employees under s.319 of the Fair Work Act 2009 and, if so, whether it was just and equitable to do so. The Applicant contended that the Agreement should apply because the employees performed the same or similar work and there was continuity in the enterprise. The Commission needed to determine whether these conditions were met and whether it was just and equitable to extend the Agreement to the Applicant's non-transferring employees.

The Commission considered that the employees in question performed the same or similar work and that there was continuity in the enterprise, which satisfied the conditions for extending the Agreement under s.319 of the Act. Additionally, the Commission found it was just and equitable to extend the Agreement to the Applicant's non-transferring employees, given the circumstances of the acquisition and the employees' ongoing role in the enterprise. Consequently, the Commission granted the Applicant's application and ordered that the Agreement cover the non-transferring employees.

Saputo Dairy Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established