Fair Work – Recent cases of interest

Transfer of business

[2014] FWC 8356 SA Worgan v Bedford Group (“In terms of s.389(1)(a) Bedford’s decision to cease job placement activities and transfer that function to Maxima represents a change in its operational requirements which explains why Mr Worgan could no longer be offered employment as a Bedford employee” @27 – “whilst Mr Worgan identified a number of different reasons for declining the Maxima offer of ongoing employment, his primary reasons for doing so were that he preferred to work with people with disabilities and that he sought a redundancy payment” @24 – the roles were essentially the same – “the arrangement implemented with respect to Mr Worgan, constituted a transfer of business such that as Mr Worgan rejected that employment offer, Bedford was not obligated to make redundancy payments to him” @26)

FWA Cth s186(3) – Requirement that group of employees … is fairly chosen

[2014] FWCFB 8429 CEPU & AMWU v Main People Pty Ltd (R only had three casual employees at time Agreement made – “FWC must be satisfied that group covered by the agreement was fairly chosen. In determining that matter in a situation where not all employees of the employer are covered by the agreement, FWC must take into account whether the group is geographically, operationally or organisationally distinct. It is in the nature of the scheme established by the FW Act that (a majority of) the employees employed at the time an enterprise agreement is made can agree to terms and conditions of employment that will then bind future employees employed under the terms of that agreement. Nor is there anything in the FW Act to prevent employees voting to approve an agreement that will affect employees in classifications or geographic locations other than their own (unless a relevant scope order has been made). There is nothing unusual or necessarily untoward in a relatively new business making an enterprise agreement early in its life with a small number of employees, with an expectation that the business will grow and eventually employ a much larger number of employees, who would then be covered by the agreement. … [T]he Agreement covered all the respondent’s ‘blue-collar’ work force as opposed to its ‘white-collar’ employees performing management, supervisory and office-based roles). That represents a clear organisational distinction” @17-20)