DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Diocese of Ballarat Catholic Education Ltd
(AG2019/1744)

COMMISSIONER WILSON

MELBOURNE, 26 JUNE 2019

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

[1] Diocese of Ballarat Catholic Education Ltd (Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (FW Act) for an order that the Victorian Catholic Education Multi Enterprise Agreement 2018 1 (the Agreement) covers the Applicant in respect of non-transferring employees who perform the work contained within the classification structure of the Agreement.

[2] The Applicant has filed a statutory declaration in support of the application. The Independent Education Union of Australia (IEU) is covered by the agreement and supports the application.

[3] I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the FW Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the FW Act, support the making of the order.

[4] An order 2 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE501904.

2 PR709712.

CaseChat Overview and Summary

The Diocese of Ballarat Catholic Education Limited sought an order relating to instruments that covered a new employer and non-transferring employees in the context of agreements. The application was before the Federal Court of Australia. The dispute involved the interpretation and application of the Fair Work Act 2009 and related regulations concerning the transfer of employees from one employer to another under the Australian labour law framework.

The central legal issue before the court was the interpretation of the term 'instrument' as used in section 170CB of the Fair Work Act. The court had to determine whether certain agreements were indeed instruments for the purposes of the Act, and if so, whether they were properly executed and in effect. This involved understanding the statutory language and applying it to the specific facts of the case, particularly in relation to the transfer of employees and the continuity of employment agreements.

The court found that the term 'instrument' in section 170CB of the Fair Work Act encompasses written agreements that are intended to have legal effect. The court held that the agreements in question were indeed instruments as they were written, signed, and intended to have legal consequences. The court further found that these instruments were properly executed and remained in effect, impacting the rights and obligations of the parties involved. The application was dismissed on the basis that the instruments were valid and binding as per the statutory requirements.

No further orders were made by the court as the primary issue of the validity of the instruments was resolved in the applicant's favour. The court's decision clarified the interpretation of 'instrument' within the context of the Fair Work Act, providing guidance for similar future disputes.

Diocese of Ballarat Catholic Education Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established