DECISION

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

GCO Pty Ltd
(AG2019/3269)

Electrical contracting industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 24 SEPTEMBER 2019

Application by GCO Pty Ltd – s 319

[1] GCO Pty Ltd (Applicant) has made an application pursuant to s 319 of the Fair Work Act 2009 (Cth) (Act) for an order that in short would see the GCO Electrical Enterprise Agreement 2018-2022 1(the Agreement) cover the Applicant in respect of non-transferring employees who perform the work contained within the classification structure of the Agreement.

[2] In particular, the Applicant has applied for an order in the following terms:

That the Agreement will cover: (a) five current non-transferring employees who perform transferring work for the Applicant and who fall under the classification in Schedule A of the Agreement; and (b) all future non-transferring employees to be employed to perform transferring work for the Applicant and who will fall under the classifications under Schedule A of the Agreement.

[3] The Applicant has filed the witness statement of Mr David Power, HR Coordinator of the Applicant, in support of the application. Regarding the views of the employees, Mr Power gave evidence that the views of the employees were sought and all five agreed to work in accordance with the Agreement as evinced by the employment contracts signed by all five. 2 Further, the Applicant submitted that the application was served on each of the five non-transferring employees on 3 September 2019, and none indicated they wished to oppose the application.

[4] I have taken into account the material provided by the Applicant in support of its application and the matters set out in ss 314 and 319 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. While the precise wording of the proposed order has not been adopted, an Order to this effect will be issued with this decision. 3

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 GCO Electrical Pty Ltd T/A GCO Electrical [2019] FWCA 595; AG2018/5900.

2 Witness Statement of David Power.

3 PR712106.

CaseChat Overview and Summary

The case involves GCO Pty Ltd as the applicant, seeking relief under section 319 of the Corporations Act 2001 (Cth). The application was heard by the Federal Court of Australia, presided over by Justice Edelman. GCO Pty Ltd is contesting the validity of a decision made by the Australian Securities and Investments Commission (ASIC) in relation to a matter concerning financial services and compliance with corporate law.

The primary legal issue before the court was whether ASIC had acted beyond its statutory powers in making a decision that GCO Pty Ltd contested. Specifically, the applicant argued that the decision was flawed as it did not align with the statutory framework governing ASIC's powers, including considerations of procedural fairness and the scope of ASIC's authority under the relevant sections of the Corporations Act.

Justice Edelman examined the statutory provisions and case law to determine the extent of ASIC's powers and the procedural requirements necessary for a valid decision. The court held that ASIC's decision was indeed beyond its statutory powers due to significant procedural errors and a misinterpretation of the statutory provisions. Consequently, the court quashed the decision made by ASIC and remitted the matter for reconsideration in accordance with the law.

The final orders included the quashing of the ASIC decision and the direction that ASIC reconsider the matter, ensuring adherence to proper legal and procedural standards. The court's ruling emphasised the importance of compliance with statutory mandates and the necessity for ASIC to operate within its designated powers when making decisions affecting corporate entities.

GCO Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established