Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Application by the Australasian Meat Industry Employees Union in relation to the Steggles Beresfield Site (Production & Distribution) EA 2022-2026

Application for order under s 319(1)(b) of the Fair Work Act 2009 (Cth) relating to an instrument covering new employer and non-transferring employees - Order sought that transferrable instrument cover non-transferring employees - Non-transferring employees already being afforded conditions under the transferrable instrument - Application not opposed - Order made.

• [1] This is an application by the Australasian Meat Industry Employees' Union (the AMIEU) for an order under s 319(1)(b) of the Fair Work Act 2009 (Cth) (the Act). The order sought in the application is an order that the Steggles Beresfield Site (Production & Distribution) EA 2022-2026 (AG2022/4419) (the Steggles Beresfield Agreement) covers all non-transferring employees who perform or are likely to perform transferring work for Bartter Enterprises Pty Ltd at its Beresfield poultry facility. The application is supported by a witness statement dated 1 October 2025 made by the Assistant Secretary of the AMIEU Newcastle, Northern, South Australian and Tasmania Branch, Jason Roe.

• [2] The background to the application is that, in or around March 2023, a transfer of business took place in which the employment of workers at the Beresfield Poultry Processing Facility located near Newcastle in New South Wales transferred from Steggles Pty Ltd to Bartter Enterprises Pty Ltd. Mr Roe indicates that, on 23 March 2023, he received an email containing a letter from Simon Camilleri, Managing Director of Baiada (the group of which Bartter Enterprises Pty Ltd is part), which stated that, from June 2023, employees would be employed by the relevant site's operating entity instead of their current stand alone entity. The letter indicated that: "For the Beresfield Plant site, the employer entity will change from Steggles Pty Limited to Bartter Enterprises Pty Limited".

• [3] Existing employees of Steggles transferred to be employed by Bartter in either March or June 2023. There is some lack of clarity in the material before me as to when the transfer took place. However, nothing turns on the precise date for present purposes. Since the transfer occurred, both transferring employees and non-transferring employees have been paid and classified in accordance with the Steggles Beresfield Agreement. As a matter of law, only transferring employees who were previously employed by Steggles Pty Ltd are actually covered by the Steggles Beresfield Agreement by operation of s 313(1) of the Act.

• [4] The present application was made in the context of two applications made by the AMIEU for regulated labour hire arrangement orders under s 306E of the Act relating to employees of Ready Workforce (A Division of Chandler Macleod) Pty Ltd and Australia Personnel Global Pty Ltd who are supplied to perform work for Bartter at the Beresfield facility. The relevant host employment instrument, or covered employment instrument, for the purposes of those applications is the Steggles Beresfield Agreement. The requirements that must be satisfied for a regulated labour hire arrangement order to be made under s 306E(1) are as follows:

(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:

(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and

(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and

(c) the regulated host is not a small business employer.

• [5] The requirement in s 306E(1)(b) is that the covered employment instrument would apply to the regulated employees if the regulated host were to employ the employees to perform the same kind of work. Bartter raised an issue as to the operation of s 306E(1)(b) in circumstances in which the host employment instrument is a transferrable instrument and the instrument applies to some, but not all, employees of the regulated host.

• [6] The issue raised by Bartter presents a question of statutory interpretation the answer to which is not necessarily straightforward. In order to avoid the need to address that question, the AMIEU has applied for the order under s 319(1)(b) which would, if made, ensure that the host employment instrument (that is, the Steggles Beresfield Agreement) applies to all employees of Bartter at the Beresfield facility. Bartter communicated to the Commission that it does not oppose an order being made under s 319(1)(b).

• [7] Part 2-8 of the Act provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer. Section 311 describes when a transfer of business has occurred. There is no issue in the present matter that a transfer of business occurred for the purposes of s 311(1) and that there is a connection between Steggles Pty Ltd and Bartter at least for the purposes of s 311(3). As such, a transfer of business occurred. The consequence of s 313(1) is that the Steggles Beresfield Agreement covers Bartter and any transferring employees.

• [8] Division 3 of Part 2-8 then confers powers on the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer. Section 319 provides:

319 Orders relating to instruments covering new employer and non‑transferring employees

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

(2) The 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 non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 to make the order, the FWC must take into account the following:

(a) the views of:

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

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non‑transferring employee before the later of the following:

(a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.

• [9] The order sought in this matter is an order under s 319(1)(b) that "a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part, covers, or will cover, a non-transferring employee". In deciding whether to make such an order the Commission is required to take into account the matters in s 319(3).

• [10] The AMIEU is covered by the Steggles Beresfield Agreement and, as such, is entitled to apply for an order under s 319(1) under s 319(2)(c). Having regard to the considerations listed in s 319(3), I am satisfied that an order should be made under s 319(1)(b).

Section 391(3)(a) - Views of the new employer and the employees affected by the order

• [11] The new employer, Bartter, does not oppose an order being made under s 319(1)(b). There is no direct evidence before the Commission in relation to the views of employees who would be affected by the order. The only employees who would be affected by the order would be new employees who have commenced at the Beresfield facility after the transfer and are employed by Bartter. The witness statement of Mr Roe indicates that non-transferring employees are already paid and classified in accordance with the Steggles Beresfield Agreement. In those circumstances, I consider it unlikely that non-transferring employees would oppose an order being made which would formalise the present practical situation. The considerations in s 319(3)(a) favour the making of the order.

Section 391(3)(b) - Whether employees would be disadvantaged

• [12] In circumstances in which the evidence indicates that non-transferring employees are already paid and classified in accordance with the Steggles Beresfield Agreement, I am satisfied that no employee would be disadvantaged by an order being made in relation to their terms and conditions of employment for the purposes of s 319(3)(b). This consideration favours the making of the order.

Section 391(3)(c) - The nominal expiry of the agreement

• [13] The nominal expiry date of the Steggles Beresfield Agreement is 10 May 2026 and the terms of the Agreement will continue to apply until the Agreement is formally replaced or terminated. This period gives an order a useful period in which to operate and, as a consequence, the consideration in s 319(3)(c) favours or is neutral in relation to making an order.

Section 391(3)(d) - Negative impact on productivity

• [14] In circumstances in which the evidence indicates that non-transferring employees are already paid and classified in accordance with the Steggles Beresfield Agreement, an order could not have a negative impact on the productivity of Bartter's workplace. Bartter makes no submission that an order would harm productivity. The consideration in s 319(3)(d) favours the making of the order.

Section 391(3)(e) - Significant economic disadvantage to the new employer

• [15] In circumstances in which the evidence indicates that non-transferring employees are already paid and classified in accordance with the Steggles Beresfield Agreement, an order could not cause significant economic disadvantage to Bartter. Bartter makes no submission that an order would cause it any economic disadvantage at all. The consideration in s 319(3)(e) favours the making of the order.

Section 391(3)(f) - Degree of business synergy between the transferable instrument and an existing instrument

• [16] There is no other workplace instrument that covers Bartter in relation to the operations at the Beresfield facility. Employees at the Beresfield facility were previous employed by a specific employer entity within the same corporate group and the only instrument which has applied to employees following the transfer is the Steggles Beresfield Agreement. The consideration in s 319(3)(f) is not relevant.

• [17] There are no public interest considerations that militate against an order being made in this matter. Arguably, it is in the public interest for employees who are being paid and have been classified under the Steggles Beresfield Agreement to have certainty as to their employment conditions by reason of the Agreement directly applying to their employment. The consideration in s 319(3)(g) also favours an order being made.

• [18] Having considered each of the matters in s 319(3) of the Act, I am satisfied that it is appropriate for an order to be made as sought by the AMIEU. In accordance with s.319(4) of the Act, the order will not come into operation in relation to each non-transferring employee until the later of either the time when the non-transferring employee starts to perform the transferring work for the new employer or the day on which the order is made.

• [19] An order will be issued in conjunction with this decision.

B Swan, National Industrial Officer, appeared for the Australasian Meat Industry Employees' Union.

L Shanahan, solicitor, of Kingston Reid appeared for Bartter Enterprises Pty Ltd.

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