Fair Work Commission|2025-10-09

Berajondo Earthmoving And Haulage Pty Ltd [2025] FWC 3003 (9 October 2025)

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

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

[1] Berajondo Earthmoving and Haulage Pty Ltd (the Applicant) has applied for an order under section 319(1)(b) of the Fair Work Act 2009 (Cth) (the Fair Work Act) to the effect that the transferable instrument, the Berajondo Pty Ltd Enterprise Agreement 2022 (the Agreement) will cover non-transferring employees.

[3] Part 2-8 of the Fair Work Act describes when a transfer of business occurs. It also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

[4] Section 311(1) defines "transfer of business", and section 312 defines the types of "transferable instrument" that may transfer from one employer to another. Sections 317 and 319 of the Fair Work Act provide for the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to non-transferring employees.

[5] In deciding whether to make orders of this kind, the Commission must take into account the factors set out in section 319(3) of the Fair Work Act.

[6] I issued a Notice of Listing for a hearing to be held on 8 October 2025. I made directions on 9 September 2025 requiring the Applicant to provide copies of the directions and the Notice of Listing to all current employees. The directions provided that if any employee or their employee organisation wanted to be heard in relation to the application they could do so by filing a written statement or attending the hearing.

[8] The Agreement was approved by the Commission on 8 April 2022.[1] It is a transferable instrument for the purposes of section 312(1)(a) of the Act.

[9] I am satisfied that there is a transfer of business between Berajondo Pty Ltd and Berajondo Earthmoving and Haulage Pty Ltd for the purposes of section 311(1).

[10] The grounds for the application included that new non-transferring employees would be better off overall if they are covered by the Agreement than if they were to be covered by the Building and Construction General On-site Award, as would otherwise be the case. I accept that is the case, having reference to the decision to approve the Agreement, and the provisions of the Agreement itself, including at clause 4.

[11] At the time the application was made, there were no non-transferring employees affected by the proposed order. The Agreement does not cover any employee organisation. No employee or employee organisation sought to be heard in relation to the application, either in writing, or at the hearing.

[12] Transferring employees will not be disadvantaged by the orders sought as it will have no effect on them. New non-transferring employees performing work covered by the Agreement would be better off, compared with the counterfactual situation in which they would be covered by the Award.

[13] The nominal expiry date of the Agreement is 30 March 2026. The grounds of the application included that any non-transferring employees employed by the Applicant will have the opportunity to participate in bargaining for a new enterprise agreement within 12 months of commencing their employment. There is nothing before me that leads me to doubt this is the case, and I accept it.

[14] The grounds also include that the order sought if made would improve productivity at the workplace by relieving the payroll and compliance burden that would arise if two different industrial instruments applied to employees performing the same or similar work. They also provide that the Applicant does not consider it will incur significant economic disadvantage if the order were made. I also accept these propositions. The Applicant also considers that making the order would serve the public interest. I am satisfied that it is not contrary to the public interest to make the orders sought.

[15] For the reasons above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.

Mr G Power, Draytons Workplace Consulting, for the Applicant

[1] Application by Berajondo Pty Ltd T/A Berajondo Earthmoving and Haulage [2022] FWCA 1252.

Printed by authority of the Commonwealth Government Printer

At a glance