TWO HIGH Court decisions last week restored much needed certainty to sections of the Workplace Relations Act, commentators argue. Both cases send clear messages to employers, and demonstrate the complexity of employment law in this country, they said.
The Australian Chamber of Commerce and Industry (ACCI) last week welcomed the two decisions concerning the rights and obligations of employers on the sale or restructure of a business — in the Gribbles Radiology Pty Ltd v HSUA and the Amcor Limited v CFMEU cases.
As well, the Minister for Employment and Workplace Relations, Kevin Andrews, applauded the decisions, arguing they were common sense outcomes based on the facts, delivering much needed certainty for business and employees.
In the Gribbles case, the High Court ruled that a new employer was not a successor to a former employer where there was no sale or transfer of assets between the two businesses, even if they conducted the same or similar business activities. The new employer was then bound by its own industrial obligations and not those imposed on the former employer.
In the Amcor case, the High Court ruled that employees who stayed in their jobs on the same conditions after a demerger, but who had a different employer as a result of corporate restructuring, were not entitled to redundancy pay because their positions had not been made redundant.
Both decisions concerned the interpretation of the transmission of business provisions in Section 149 of the Workplace Relations Act, and in both the Australian Government intervened.
Minister for Employment and Workplace Relations Andrews said the decision in Gribbles clarifies the law regarding the transmission of business, while providing more certainty for employers and employees. “It is important for business and employees that the rule under the Workplace Relations Act be clear in relation to transmission of business and in the event of corporate change,” Andrews said.
The ACCI concedes that these were important decisions for industry and restore “much needed certainty” to this area of employment law. The sale, transfer, contracting out and restructuring of businesses are a daily feature of commercial activities in the realities of the modern economy, said the ACCI, suggesting that the obligations of employers in these areas need to be clear.
“The Amcor decision sends a strong message against double-dipping of redundancy entitlements when jobs are retained in corporate restructuring. The Gribbles decision sends a strong message that one employer’s obligations will not be imposed on another unless one is truly the successor of the other,” the ACCI said in a statement.
The cases also demonstrate how employment law in this country is “extraordinarily technical”, the ACCI said, arguing that a “simpler set of employment laws are needed”. It suggested the High Court should not be used for these matters that arise every day.
The cases demonstrate the limitations on the current scope of conciliation and arbitration power, the ACCI said. In the Gribbles case, the High Court said that “section 51(xxxv) of the Constitution does not support a law providing for the declaration of a common rule for an industry”. This shows that the old conciliation and arbitration system, and the powers on which it is based, is not adequate in setting a modern safety net of minimum employment conditions, the ACCI argued.
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