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
(AG2018/2264)

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

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

[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 and National Union of Workers Devondale Dairy Beverage Centre Agreement 2016 (“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

Saputo Dairy Australia Pty Ltd was before the Fair Work Commission, where the company sought an order relating to instruments that covered a new employer and non-transferring employees. The application was in response to a transfer of business under section 634 of the Fair Work Act 2009, involving the sale of Saputo's dairy processing business to a new entity, Saputo Dairy Australia Pty Ltd. The dispute centred on the applicability of certain instruments to the new employer and the non-transferring employees.

The primary legal issue was whether the instruments, which were originally in place for the previous employer, should continue to apply to the new employer and the non-transferring employees. This included interpreting the provisions of the Fair Work Act and associated regulations to determine the extent to which the transfer of business affected existing employment agreements and conditions. The commission also had to consider the rights and obligations of the new employer under the Fair Work Act.

The Fair Work Commission found that the instruments did not automatically transfer to the new employer as they were not covered by the relevant provisions of the Fair Work Act. The commission reasoned that the transfer of business did not include the non-transferring employees, and thus the instruments that applied to them were no longer applicable. The decision was based on the specific language of the Fair Work Act and the particular circumstances of the business transfer. The commission concluded that the new employer was not bound by the instruments that applied to the non-transferring employees.

As a result, the commission dismissed the application by Saputo Dairy Australia Pty Ltd. The new employer was not required to adhere to the instruments that applied to the non-transferring employees, and the instruments remained in effect only for those employees who were transferred to the new entity. The decision clarified the scope of the business transfer provisions under the Fair Work Act and provided guidance on the implications for both new employers and non-transferring employees in similar situations.

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