Fair Work Act 2009

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] Quebec Citrus Pty Ltd (Quebec Citrus) has made an application (Application) for an order pursuant to section 319(1)(b) of the Fair Work Act 2009 (FW Act) that the T & A Emmerton Pty Ltd Enterprise Agreement 2025 (Agreement) cover employees of Quebec Citrus who perform, or are likely to perform work which is the same, or substantially the same, as the work performed by former employees of T&A Emmerton Pty Ltd (T&A Emmerton) who are covered by the Agreement and who have transferred employment to Quebec Citrus.

• [2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 7 May 2029.

• [3] The parties to the Agreement are T&A Emmerton and employees of T&A Emmerton engaged in the classifications set out in Schedule One of the Agreement

• [4] There are no employee organisations covered by the Agreement.

• [5] Both T & A Emmerton and Quebec Citrus employ workers who perform work in the horticulture industry. T & A Emmerton is an associated entity of Quebec Citrus.[1]

• [6] On 19 May 2025 several employees of T&A Emmerton, who are covered by the Agreement, transferred their employment from T&A Emmerton to Quebec Citrus (Transferring Employees).[2]

• [7] Quebec Citrus has 86 employees who perform, or are likely to perform, horticultural work the same or substantially the same as the horticultural work performed by the Transferring Employees (Non Transferring Employees).[3] Quebec Citrus asserts the transfer of employment has resulted in a transfer of business for the purposes of section 311 of the FW Act.

• [8] If a transmission of business has occurred for the purposes of section 311 of the FW Act and the work the Transferring Employees perform for Quebec Citrus is the same, or substantially the same, as the work they performed for T&A Emmerton, then by virtue of section 313 of the FW Act, the Agreement will cover Quebec Citrus and any Non Transferring Employees.

• [9] If the Fair Work Commission (FWC) declines to grant the order sought Non-Transferring Employees of Quebec performing the same or substantially the same work as the Transferring Employees will, by virtue of s 314 of the FW Act, be covered by the Horticulture Award 2020.

• [10] To ensure consistency in terms and conditions of employment for Transferring Employees and Non-Transferring Employees performing the same or substantially the same work, Quebec Citrus seeks an order from the FWC that the Agreement covers Non-Transferring Employees (Proposed Order).

• [11] On 5 June 2025, directions were issued with respect to the Application (Directions). The Directions required Quebec Citrus to file an outline of submissions in support of the Application and any evidence on which they relied.

• [12] The Directions also required Quebec Citrus to provide a copy of the Application, the Agreement, the materials filed in accordance with paragraph [8] of the Directions and a copy of the Directions to each Non Transferring Employee and the employee organisation that would ordinarily have represented the industrial interests of the Non Transferring Employees.

• [13] The Directions contained an invitation for any Non-Transferring Employee who wished to be heard in relation to the Application to contact Chambers by 4pm, Thursday 19 June 2025.

• [14] In accordance with the Directions Quebec Citrus filed the following with FWC:

1. An outline of submissions as to why the Application should be granted addressing section 319(3) of the FW Act.
2. A statutory declaration by Ms Aisley Emmerton confirming that a copy of the Application, the Agreement, the materials filed in accordance with paragraph [8] of the Directions and the Directions had been served on all employees of Quebec Citrus.
3. A statutory declaration by Mr Chris Mossman confirming that a copy of the Application, the Agreement, the materials filed in accordance with paragraph [8] of the Directions and the Directions had been served on the Australian Workers Union.

• [15] Neither an employee organisation or any Non-Transferring Employees contacted Chambers by 4pm Thursday 12 June 2025 or by the date of this decision.

• [16] Section 319(2) provides that inter alia a new employer or person who is likely to be a new employer may make an application for an order pursuant to section 319(1)(b) of the FW Act.

• [17] Section 319(3) of the FW Act sets out matters that the FWC must take into account in deciding whether to make an order pursuant to section 319(1)(b):

(3) In deciding whether to make the order, the FWC must take into account the following:

(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;

1. a 'transfer of business' has occurred as defined by section 311 of the FW Act;
2. the Agreement is a 'transferable instrument' as defined by section 312 of the FW Act; and
3. Quebec Citrus is a 'new employer' for the purposes of section 319(2) of the FW Act.

• [19] I therefore find that Quebec Citrus has standing to make the Application pursuant to section 319(2)(a) of the FW Act.

• [20] The view of the new employer Quebec Citrus is that the Application should be granted to ensure consistency in terms and conditions among employees.[4]

• [21] No objection to the Application was received from the AWU or any Transferring or Non Transferring Employee.

• [22] I note that the Agreement has only recently been approved and therefore been recently subjected to the Better Off Overall Test assessment.

• [23] There is no evidence that the employees affected would be disadvantaged by the order in relation to their terms and conditions of employment.

• [24] The nominal expiry date of the Agreement, namely 7 May 2029, therefore there will not be a possibility of Quebec Citrus' negotiation and new enterprise agreement with the Transferring Employees for several years.

• [25] Quebec Citrus submits that by ensuring consistency in terms and conditions of employment between Transferring Employees and Non-Transferring Employees performing the same or substantially the same work, granting the Application is likely to have a positive impact on workplace productivity.

• [26] Quebec Citrus says that it will not incur significant economic disadvantage if the Application is granted.

• [27] There is minimum business synergy between the Agreement and the relevant Award because of the differing terms and conditions.

• [28] There is nothing to suggest that the order sought is contrary to the public interest.

• [29] In light of the above, it is appropriate to make the order sought by Quebec Citrus. An order[5] to this effect will be issued with this decision.

[1] Witness Statement of Ainsley Emmerton dated 15 May 2025 at [3] (Emmerton).

[3] Emmerton at [13], Witness Statement of Ainsley Emmerton dated 12 June 2025 at [5].

[5] PR788756.

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