DECISION

Fair Work Act 2009
s.318; s.319 - Application for an order relating to instruments covering new employer, transferring employees and non-transferring employees

Translational Research Institute Pty Ltd as trustee for Translational Research Institute Trust
(AG2021/5448)

Educational services
COMMISSIONER SIMPSON	BRISBANE, 21 JULY 2021

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

[1] Translational Research Institute Pty Ltd as trustee for Translational Research Institute Trust (the Applicant) has made an application pursuant to s.318 and s.319 of the Fair Work Act 2009 (the Act) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument.

[2] The Applicant seeks the following orders:

1. Pursuant to section 313 of the Fair Work Act, 2009, the University of Queensland Enterprise Agreement 2014-2017 that would, by operation of section 313 of the Fair Work Act 2009, cover the Translational Research Institute Pty Ltd and transferring employees from the University of Queensland does not cover the Translational Research Institute Pty Ltd or the transferring employees employed by the Translational Research Institute Pty Ltd;

2. The University of Queensland Enterprise Agreement 2014-2017 that would cover the Translational Research Institute Pty Ltd and non-transferring employees does not cover the non-transferring employees employed by the Translational Research Institute Pty Ltd.

[3] The Applicant gave notice that three unions were parties to the Agreement, those being the National Tertiary Education Industry Union, University of Queensland Branch (NTEU), the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch (now merged into Together Queensland) (Together Queensland) and United Voice now known as the United Workers Union (UWU).

[4] A directions hearing was held on 30 June 2021. After this hearing I issued directions for the Applicant to serve a copy of the F40 Application on its employees as well as a copy of the attachments to the application and Directions. The Directions also provided that if any employee or Union wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by close of business 9 July 2021.

[5] On 14 July 2021, the NTEU wrote to the Commission confirming it held no view on the Application, did not wish to be heard in relation to the Application, and had no objection to the Commissioner determining the Application on the papers.

[6] To date, no material has been received from any other Union or employees of the Applicant.

[7] Having considered the views of the new employer and the new employees, the Commission is satisfied that the requirements of s.318 and s.319 of the Act have been met. Orders will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Translational Research Institute Pty Ltd as trustee for the Translational Research Institute Trust, and concerned an application for an order in relation to instruments that covered a new employer, transferring employees, and non-transferring employees. The application was heard in the Fair Work Commission. The primary issue before the court was whether the instruments in question could be varied to address the rights and obligations of the parties involved in the employment transfer. This involved an examination of the legal framework governing the transfer of business under Australian law, specifically the Transfer of Business Act and the Fair Work Act.

The court considered the nature of the instruments and their intended purpose, which was to govern the terms of employment for both transferring and non-transferring employees in the context of a business transfer. The legal issue revolved around the extent to which the instruments could be modified to reflect the new circumstances without violating the rights of the employees. The court had to balance the interests of the new employer, the transferring employees, and the non-transferring employees, ensuring that any changes were fair and did not undermine the protections provided by the legislation.

In its reasoning, the court emphasised the importance of maintaining the integrity of the employment protections during a business transfer. The court acknowledged the need for flexibility in the instruments to accommodate the realities of a business transfer but held that any changes must be justifiable and not detrimental to the employees. The court concluded that the proposed variations to the instruments were permissible, provided they were consistent with the statutory requirements and did not adversely affect the rights of the employees. The outcome was that the application for the order was granted, subject to certain conditions that aimed to safeguard the interests of all parties involved.

Translational Research Institute Pty Ltd as trustee for Translational Research Institute Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established