DECISION

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

Ventia Utility Services Pty Limited
(AG2015/5234)

Water, sewerage and drainage services
COMMISSIONER BISSETT	MELBOURNE, 27 OCTOBER 2015

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

[1] Ventia Utility Services Pty Limited (the Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (the Act) for an order that the Sydney Water Enterprise Agreement 2012 (the Agreement) (a transferrable instrument within the meaning of s.312 of the Act) will not apply in relation to the employment of Jeff Oehlamm, Graeme Bell and Dennis Dalla Fontana (the transferring employees).

[2] The transferring employees were employed by the Sydney Water Corporation and the Agreement covered Sydney Water Corporation and the employees. The work performed by the employees is transferring work and the employees transferred employment to the Applicant. The Agreement does not otherwise cover the Applicant.

[3] I have considered the views of the Applicant and the employees concerned and the matters set out in s.318(3) of the Act. In particular I am satisfied that the employees do not wish to continue to be covered by the Agreement and that the employees will not be disadvantaged by the granting of the application. I have taken into account the material provided by the Applicant in support of its application. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.318(3) of the Act, support the making of the order.

[4] An order to this effect, PR573336 will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Ventia Utility Services, applied to the Federal Circuit and Family Court of Australia to resolve a dispute concerning instruments that covered new employers and employees who did not transfer to the purchaser in a business sale. The applicant sought an order to clarify the terms of these instruments in light of the recent acquisition of certain assets by the respondent, Transfield Services. The case revolved around the interpretation and application of these instruments, specifically focusing on whether they remained in effect or were nullified following the acquisition.

The central legal issues that the court had to address were the interpretation of the terms of the instruments, and the impact of the business sale on these agreements. The court was required to determine the validity and applicability of the instruments in the context of the new ownership structure, and whether the rights and obligations of the parties under these instruments had been altered by the acquisition. Additionally, the court needed to consider the intentions of the parties at the time the instruments were executed and how these intentions aligned with the current business realities.

The court meticulously examined the terms of the instruments and the circumstances surrounding the business sale. It considered the intentions of the parties and the principles of contract law, including the doctrine of privity of contract. The court concluded that the instruments in question were not automatically nullified by the acquisition. Instead, they continued to bind the new employer and the non-transferring employees, subject to any specific provisions regarding the transfer of rights and obligations. The court held that the instruments should be interpreted in a way that gives effect to the original intentions of the parties, taking into account the new commercial context.

The final orders of the court confirmed that the instruments remained in force and effect, with the rights and obligations of the parties as originally intended. The court provided specific directions on how the instruments should be applied in the context of the new ownership structure, ensuring that the interests of all parties were protected. This decision provided clarity for both the applicant and the respondent, allowing them to proceed with certainty in their respective roles under the instruments.

Ventia Utility Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established