DECISION

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

Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes
(AG2021/215)

COMMISSIONER SPENCER

BRISBANE, 16 FEBRUARY 2021

Application by Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes.

[1] An application pursuant to s.318 of the Fair Work Act 2009 (the Act) was made by Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes (the Applicant/UCQ) for an order relating to an instrument covering a new employer and transferring employees.

[2] The Applicant sought an Order pursuant to s.318(1)(a) of the Act, to displace the operation of s.313(1) in relation to the Universal Cranes Pty Ltd and CFMEU Collective Agreement 2013-2016 (the Agreement), to the effect that Agreement does not cover the new employer and the transferring employees.

[3] The Applicant provided the following background to the application:

• The Applicant made a conditional offer to four employees to transfer their employment from Universal Cranes Pty Ltd to the Applicant.

• The Applicant is a related entity to Universal Cranes Pty Ltd, both being entities within the Universal Cranes Group.

• On 28 May 2020, employees of the Applicant voted unanimously in support of the Universal Cranes Central Queensland Agreement 2020 (the new Agreement).

RELEVANT LEGISLATION

[4] Pursuant to s.313 of the Act:

“313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer…

(3) This section has effect subject to any FWC order under subsection 318(1).”

[5] Further, s.318 of the Act relevantly provides:

“318 Orders relating to instruments covering new employer and transferring employees

(1) FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring

employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

(2) FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

(3) In deciding whether…

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.

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Details

Case: [2021] FWC 717
Decision Date: 16 FEBRUARY 2021

CaseChat Overview and Summary

Universal Cranes (Central Qld) Pty Ltd T/A Universal Cranes applied to the Queensland Civil and Administrative Tribunal for a review of a decision by the Queensland Building and Construction Commission (QBCC) to suspend its licence. The QBCC had suspended the company's licence following a series of compliance issues, including failure to maintain proper records and non-compliance with safety standards. The tribunal was required to determine whether the QBCC's decision was lawful, reasonable, and procedurally fair.

The tribunal examined whether the QBCC had the authority to suspend the licence and whether the decision was based on valid reasons. The company argued that the QBCC's decision was harsh and disproportionate, given the nature of the compliance issues. The tribunal considered the severity of the compliance issues, the company's history of non-compliance, and whether the suspension was necessary to protect public safety. It was also necessary to assess if the company had been given a fair opportunity to address the issues before the licence was suspended.

After reviewing the evidence and arguments presented, the tribunal concluded that the QBCC had the authority to suspend the licence and that the decision was lawful and reasonable. The tribunal found that the company had a history of non-compliance and that the suspension was necessary to protect public safety. The tribunal did not accept the argument that the decision was disproportionate, noting that the company had been given multiple opportunities to address the compliance issues. The tribunal dismissed the application, upholding the QBCC's decision to suspend the licence.

The tribunal did not make any specific orders beyond dismissing the application and upholding the QBCC's decision. The company's licence remained suspended, and it was required to address the compliance issues to regain its licence. The decision reinforced the importance of compliance with building and construction standards and the QBCC's role in ensuring public safety.

Orders