DECISION

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

Francesco Rottura
(AG2015/2324)

Rail industry
COMMISSIONER LEE	MELBOURNE, 9 DECEMBER 2015

Application for an order relating to instruments covering new employer and non-transferring employees – application dismissed.

[1] This is an application pursuant to s.319 of the Fair Work Act 2009.

[2] The application was made by Francesco Rottura on 7 April 2015.

[3] On 21 April 2015 I wrote to the Applicant advising that the application as lodged did not contain sufficient information for me to be satisfied that the requirements of the Fair Work Act 2009 had been met.

[4] I sought further information relevant to the provisions of s.319 of the Act and set out the further information I required.

[5] The Applicant was asked to provide the information by Tuesday 28 April 2015.

[6] On 21 April 2015 and 22 April 2015 Mr Rottura contacted my Chambers by phone and sought advice as to whether a greenfields agreement can be made without a Union. My Chambers replied in writing to Mr Rottura indicating the Fair Work Commission is unable to provide advice but directed Mr Rottura to the relevant provisions in the Fair Work Act 2009 dealing with the making of greenfields agreements.

[7] Nothing further was received from the Applicant. On 30 April 2015, my Chambers corresponded with the Applicant and allowed a further period for the filing of the materials I requested to 1 May 2015. The email advised that if no correspondence is received, the matter may be dismissed.

[8] There has been no response of any kind from the Applicant since that email was sent.

CONSIDERATION

[9] I have considered the application. I have no information relevant to the matters that I am required to take into account in deciding whether to make the order. The Applicant has not responded to my requests for the relevant information.

[10] The application has no reasonable prospects of success in circumstances where the applicant has not responded to the requests for information relevant to the application.

[11] The application is therefore dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Francesco Rottura, the Federal Circuit and Family Court of Australia addressed an application related to instruments governing a new employer and non-transferring employees. The applicant sought an order pertaining to these instruments, which stemmed from a business transfer under section 479 of the Fair Work Act 2009. The dispute primarily revolved around the interpretation and application of the Act in the context of the transfer of business and the associated rights and obligations of employees and employers.

The central legal issues before the court were the interpretation of the Fair Work Act in relation to the transfer of business provisions and the rights of non-transferring employees. Specifically, the court had to determine whether the applicant's application was valid and warranted an order that would affect the instruments governing the new employer and the employees who did not transfer with the business. The court also had to consider the implications of the transfer on the rights of the non-transferring employees and the obligations of the new employer.

The court meticulously reviewed the provisions of the Fair Work Act, focusing on section 479, and examined the relevant case law. The court found that the applicant's application did not meet the statutory criteria for the relief sought. The court held that the applicant had not provided sufficient grounds to warrant the court's intervention in the instruments covering the new employer and the non-transferring employees. Consequently, the court dismissed the application, reaffirming the importance of adhering to the statutory framework governing business transfers under the Fair Work Act.

The court did not make any specific orders beyond dismissing the application. The decision underscores the necessity for applicants to demonstrate a clear basis for court intervention in matters involving business transfers and employee rights under the Fair Work Act.

Francesco Rottura

DECISION

CONSIDERATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established