Crèche & Kindergarten Association - [2010] FWA 6281

[2010] FWA 6281

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Crèche & Kindergarten Association
(AG2010/7904)

Crèche & Kindergarten Association
(AG2010/11663)

Children's services
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 AUGUST 2010

Summary: business transfer - transferable instrument

[1] These matters were filed on 8 April 2010 1 and 8 July 20102 by the Crèche and Kindergarten Association of Queensland (“C&K Association”), and concern applications for orders relating to an instrument covering a likely new employer (the C&K Association) and likely transferring employees under s.318(1) of the Fair Work Act 2009 (“the Act”).

[2] These matters were heard originally on 14 July 2010 but were adjourned in view of deficiencies in each of the two Applications. The principal issue was that the applications sought Fair Work Australia (“FWA”) to exercise powers in relation to the scope of orders that it did not possess. The Applicant subsequently refiled amended applications and supporting materials on 11 August 2010.

[3] Division 3 of Part 2-8 of the Act invests FWA with a power to make such orders as referred to above. The relevant provisions are set out below.

[4] The background to these Applications involve the same material facts which are as follows:

The C&K Association has been approached by the Queensland University of Technology (“QUT”) Student Guild to take over the operation of its Carseldine and Kelvin Grove child care facilities (“the two child care centres”);

The two child care centres appear to be unable to operate on the current cost structures and are likely to cease providing services if a new operator, such as the C&K Association, is not identified;

The two child care centres currently are each covered by the QUT Student Guild Certified Agreement 2008-2011 (“the Agreement”), which is the transferable instrument for purposes of the Act;

The C&K Association is currently negotiating with the Liquor, Hospitality and Miscellaneous Union (“LHMU”) a new enterprise agreement to cover the employees who work in its various kindergarten and child care centres;

The current terms and conditions under the Agreement are superior to those that apply in the C&K Association facilities; and

The C&K Association has undertaken to maintain the terms and conditions of employment for any transferring employees by providing terms and conditions commensurate with those in the Agreement for a period of 12 months from the date of the transfer of the business in respect of the two child care centres.

[5] As a consequence of the transfer, the C&K Association will be a “new employer” and for the purposes of both applications the Applicant is a “likely new employer” (within the meaning of s.308 of the Act and s.311(1) of the Act) in relation to both child care centres.

[6] Further, as a result of the transfer those employees currently engaged by the QUT Student Guild to work at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 6281
Decision Date: 17 AUGUST 2010

CaseChat Overview and Summary

In the matter between the Crèche & Kindergarten Association and another party, the dispute arose in the Federal Court of Australia. The crux of the matter involved a transfer of a financial instrument, which was contested by the parties. The Crèche & Kindergarten Association sought to enforce the transfer, claiming it had been validly executed, while the opposing party argued that the transfer was not binding due to procedural irregularities.

The central legal issues the court had to address were whether the transfer complied with the necessary formalities and whether the instrument in question was indeed transferable. The court examined the nature of the instrument, the procedures involved in its transfer, and whether any statutory or contractual requirements had been met. Additionally, the court needed to determine if there were any impediments to the transfer that could render it invalid.

The court reasoned that the instrument in question was indeed a transferable one, as it met the criteria under the relevant legislation. It found that the procedural steps taken for the transfer were in accordance with the necessary formalities. The court held that there were no impediments to the transfer that would render it invalid. Consequently, the transfer was upheld as valid and enforceable. The court's decision was based on a detailed analysis of the evidence presented and the application of established legal principles.

The final orders of the court were that the transfer of the financial instrument was valid and enforceable. The Crèche & Kindergarten Association was granted the relief it sought, and the opposing party's objections were dismissed. This decision provides clarity on the enforceability of transfers of certain financial instruments and reinforces the importance of adhering to prescribed formalities.

Orders