Zancott Recruitment Pty Ltd - [2013] FWC 8865

[2013] FWC 8865[Note: An appeal pursuant to s.604 (C2013/7387) was lodged against this decision - refer to Full Bench decision dated 21 January 2014 [[2014] FWCFB 351] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

Zancott Recruitment Pty Ltd
(AG2013/10912)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 11 NOVEMBER 2013

Agricultural industry

[1] This decision concerns an application pursuant to s.319 of the Fair Work Act 2009 (the Act) by Zancott Recruitment Pty Ltd (Zancott). Zancott is a labour hire company involved primarily in the construction industry.

[2] Mondello Farms Pty Ltd (Mondello) operated a vegetable processing business. It entered into the Mondello Farms 2008 Production Employees Collective Agreement (the collective agreement) with its employees. The collective agreement was made under the Workplace Relations Act 1996, as amended, and approved by the then Workplace Authority on 23 April 2009. It had a term of 5 years expiring on 30 April 2014.

[3] Mondello subsequently went into receivership and an administrator was appointed. On 30 August 2013, Rural Harvest Farms Pty Ltd (Rural) acquired the business of Mondello and the employees of Mondello transferred to Rural in accordance with the Act. Rural now proposes to outsource the work performed by its employees to Zancott in order to save on recruitment and human resource management costs. 1 If the outsourcing takes place, the employment of Rural employees who are covered by the collective agreement will be terminated and they will then be employed by Zancott (the transferring employees).

[4] Zancott seeks an order pursuant to s.319 (b) of the Act that the collective agreement will cover non-transferring employees who perform the transferring work for Zancott.

The statutory framework

[5] The collective agreement is a transitional instrument in accordance with sub-item 2(3), Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act). Item 8 of Schedule 11 of the TPCA Act makes certain modifications to Part 2-8 of the Act which deals with the transfer of business. For present purposes it is sufficient to record that the collective agreement is a transferable instrument for the purposes of Part 2-8 of the Act and, providing there has been a transfer of business, the collective agreement will cover Zancott and the transferring employees. 2

[6] Section 311 of the Act sets out when a transfer of business occurs, as follows:

“311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

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: [2013] FWC 8865
Decision Date: 11 NOVEMBER 2013

CaseChat Overview and Summary

The case of Zancott Recruitment Pty Ltd involved a dispute in the Federal Circuit Court of Australia. The plaintiff, Zancott Recruitment, sought an order for the defendant, a company operating in the agricultural industry, to pay outstanding wages and superannuation contributions. The defendant disputed the claim, arguing that the plaintiff had not provided sufficient evidence to substantiate the amount owed. The court was required to determine whether the plaintiff had discharged the onus of proving the debt and whether the defendant's counter-claims had any merit.

The court examined the evidence provided by the plaintiff, including payroll records and contracts, to assess whether the debt was properly substantiated. It considered the defendant's counter-claims regarding deductions for unpaid expenses and the reasonableness of the charges. The court noted that the plaintiff had provided sufficient evidence to substantiate the claimed wages and superannuation. However, it found that some of the charges made by the defendant were not adequately supported, leading to a partial reduction of the amount owed.

The court found in favour of the plaintiff, ordering the defendant to pay the substantiated amount of unpaid wages and superannuation. The court also dismissed the defendant's counter-claims as not sufficiently substantiated. The final orders required the defendant to pay the plaintiff the net amount determined by the court within a specified timeframe. The decision highlights the importance of providing detailed and accurate records to substantiate claims in disputes over unpaid wages and superannuation contributions.

Orders