Minister of State for Employment Workplace Relations and Small Business v CPSU, Community and Public Sector Union [2001] FCA 316

Minister of State for Employment Workplace Relations and Small Business v CPSU, Community and Public Sector Union [2001] FCA 316

By majority, the Full Court held that the labour exchange and case management activities previously undertaken by CES/EAA were part of the business of government, and that the activities undertaken by EN and ENA were substantially identical to those activities. The Commonwealth’s tender process, transfer of assets and clients, and facilitation of employee transfer, including under s 81C of the Public Service Act 1922, established a sufficient relationship for EN and ENA to be successors, assignees or transmittees within ss 149 and 170MB. ENA was not merely a service company but effectively performed the relevant employment services business. The awards and certified agreement therefore...

Jurisdiction
Australia
Judgment Date
15 June 2001
Procedural Posture
Appeals From Declaratory Orders Made by a Single Judge of the Federal Court of Australia / Full Court Appeal
Outcome
Appeal allowed in part; declarations varied by adding qualifications; appeal otherwise dismissed.
Legal Topics
['transmission of Business' 'successor, Assignee or Transmittee' 'awards and Certified Agreements' 'commonwealth Employment Service' 'public Service Act Employment' 'declaratory Relief']
['industrial Law' 'employment Law' 'administrative Law'] ['transmission of Business' 'successor, Assignee or Transmittee' 'awards and Certified Agreements' 'commonwealth Employment Service' 'public Service Act Employment' 'declaratory Relief']

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Procedural Posture

Appeals From Declaratory Orders Made by a Single Judge of the Federal Court of Australia / Full Court Appeal

Legal Issues

  1. 1 ['Whether the activities of CES/EAA constituted a business for the purposes of ss 149 and 170MB of the Workplace Relations Act 1996.' 'Whether EN and/or ENA became successors, assignees or transmittees of the business or part of the business formerly carried on by CES/EAA.' 'Whether awards and the DEETYA Certified Agreement formerly binding in respect of CES/EAA bound EN and ENA after 1 May 1998.' 'Whether the awards and agreement were incapable of applying because EN and ENA did not employ persons under the Public Service Act 1922.' 'Whether ENA could be bound although EN was the entity contracted with the Commonwealth to provide employment services.' 'Whether declaratory relief should be granted and in what form.']

Ratio Decidendi

By majority, the Full Court held that the labour exchange and case management activities previously undertaken by CES/EAA were part of the business of government, and that the activities undertaken by EN and ENA were substantially identical to those activities. The Commonwealth’s tender process, transfer of assets and clients, and facilitation of employee transfer, including under s 81C of the Public Service Act 1922, established a sufficient relationship for EN and ENA to be successors, assignees or transmittees within ss 149 and 170MB. ENA was not merely a service company but effectively performed the relevant employment services business. The awards and certified agreement therefore...

Court Disposition

Appeal allowed in part; declarations varied by adding qualifications; appeal otherwise dismissed.

Orders

  • ['The appeal be allowed in part.' 'The order made by Einfeld J on 11 April 2000 be varied by adding to the declaration made in the proceedings numbered NG181 of 1998, the words: "to the extent that each such award or agreement (as the case may be) was capable, according to its terms, of applying to the applicants or...