TasTAFE v United Workers' Union - [2023] FWCFB 123

[2023] FWCFB 123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

TasTAFE
v

United Workers’ Union

(C2023/1713)

TasTAFE
v

Australian Education Union

(C2023/1715)

JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT O’NEILL

SYDNEY, 12 JULY 2023

Appeals against decision [2023] FWC 391 of Commissioner Lee at Melbourne on 24 March 2023 in matter numbers AG2022/1961 and AG2023/1809.

Introduction

TasTAFE is an instrumentality of the State of Tasmania with responsibility for vocational education and training. By virtue of s 4 of the TasTAFE (Skills and Training Business Act) 2021 (Tas) (TasTAFE Act), TasTAFE became an incorporated entity effective from 1 July 2022. One consequence of this change to its legal identity was that it became, for the purpose of the Fair Work Act 2009 (Cth) (FW Act), a ‘national system employer’ within the meaning of s 14 to which the provisions of the FW Act apply.[1] Under items 6 and 7(2) of Sch 3 to the TasTAFE Act, the employment of employees of TasTAFE in its previous incarnation was terminated on 1 July 2022, and they were taken to be employees of the incorporated TasTAFE effective from the same date.

The following industrial instruments in operation pursuant to the Industrial Relations Act 1984 (Tas) applied to TasTAFE immediately prior to 1 July 2022:

·TasTAFE Teaching Staff Award
·TasTAFE Teaching Staff Industrial Agreement 2021 (2021 Agreement)
·Tasmanian State Service Award
·Public Sector Union Wages Agreement 2019 (2019 Agreement)
·Facility Attendants (Tasmanian State Service) Award
·Education Facility Attendants Salaries and Conditions of Employment Agreement 2019 No 2
·Education Facility Attendant Job Security Industrial Agreement 2019

Part 6-3A of the FW Act comprises a regime of provisions applicable to a ‘transfer of business’ from a State public sector employer that is not a national system employer to a national system employer to which the FW Act applies. Section 768AD defines when a transfer of business for the purpose of Pt 6-3A occurs. There is no dispute that a transfer of business within the meaning of s 768AD occurred upon the incorporation of TasTAFE effective from 1 July 2022. Part 6-3A provides that, upon a transfer of business (as defined) occurring, certain terms and conditions of employment of ‘transferring employees’ will transfer with them. The mechanism by which this is achieved is the creation of a new instrument enforceable under the FW Act, the ‘copied state instrument’, upon the occurrence of the transfer of business which incorporates the terms of State awards and employment agreements which previously applied to the transferring employees. There are two types of copied State instruments: a ‘copied State award’ which incorporates the terms of a formerly-applicable State award, and a ‘copied State employment agreement’ which incorporates the terms of a formerly-applicable State employment agreement. In this case, copied State instruments (either copied State awards or copied State employment agreements) incorporating the terms of the instruments identified in paragraph [2] above came into existence on 1 July 2022 and applied to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TasTAFE v United Workers' Union

Details

AGLC: TasTAFE v United Workers' Union [2023] FWCFB 123
Case: [2023] FWCFB 123
Decision Date: 12 JULY 2023

CaseChat Overview and Summary

In the Fair Work Commission, TasTAFE, an instrumentality of the State of Tasmania, appealed a decision by Commissioner Lee to grant applications by the Australian Education Union (AEU) and the United Workers’ Union (UWU) for consolidation orders under s 768BG of the Fair Work Act 2009 (FW Act). The AEU sought an order that copied State instruments incorporating the terms of State awards and agreements that had applied to transferring employees of TasTAFE before it became a national system employer would apply to non-transferring teaching staff and general staff. The UWU sought an order that copied State instruments applying to transferring education facility attendants (EFAs) would apply to non-transferring EFAs. The Full Bench found that TasTAFE had not demonstrated that the Commissioner had erred in his consideration of the public interest, in his interpretation of the phrase ‘employees who would be affected by the order’, in his finding that the grant of the orders sought would not disadvantage any employees, in his assessment of the degree of business synergy between the copied State instruments and the modern awards, or in his consideration of the weight to be given to the statutory considerations. The appeal was dismissed.

Orders