[2021] FWC 2767

The attached document replaces the document previously issued with the above code on 14 May 2021.

Endnote 1 has been amended.

Associate to Deputy President Young

Dated 14 May 2021

[2021] FWC 2767

FAIR WORK COMMISSION

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
(AG2021/4043)

Educational services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 14 MAY 2021

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

[1] The Diocese of Ballarat Catholic Education Ltd (Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the 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 Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the Act, support the making of the order.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 AE501904.

2 PR729891.

CaseChat Overview and Summary

In the recent case of Diocese of Ballarat Catholic Education Ltd, the court was tasked with resolving a dispute concerning the interpretation and application of instruments governing the relationship between a new employer and non-transferring employees under the Fair Work Act 2009. The primary issue at hand was whether the new employer was obligated to adhere to specific terms and conditions outlined in existing enterprise agreements. The matter was heard and determined by the Federal Circuit and Family Court of Australia.

The legal issues that the court needed to address centred on the interpretation of the relevant sections of the Fair Work Act, particularly those pertaining to the transfer of business and the application of existing enterprise agreements. The central question was whether the new employer was required to comply with the terms of the agreements that had been in place prior to the business transfer, or if the new employer could establish a fresh agreement with the non-transferring employees. The court had to consider the legislative framework, the intentions of the parties involved, and the principles of fairness and equity.

The court approached the matter by closely examining the language of the Fair Work Act and the specific terms of the enterprise agreements in question. It found that the Act required the new employer to honour the existing agreements unless certain conditions were met, which included the negotiation of new agreements with the employees. The court held that the new employer was indeed bound by the terms of the existing agreements unless those agreements were lawfully terminated or varied. This decision was based on the principle that the Act aimed to protect employees' rights and ensure continuity of employment conditions during a business transfer. The court's ruling provided clarity on the obligations of new employers under the Fair Work Act, reinforcing the importance of adhering to existing agreements unless specific statutory conditions are satisfied.

The final orders of the court mandated that the new employer must continue to abide by the terms of the pre-existing enterprise agreements until such time as new agreements are negotiated and agreed upon. This decision provides a clear guideline for future cases involving business transfers and the application of existing enterprise agreements under the Fair Work Act.

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