DECISION

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

Illawarra Retirement Trust
(AG2019/1879)

COMMISSIONER JOHNS

SYDNEY, 28 JUNE 2019

Application for an order relating to instruments covering a new employer and transferring employees.

[1] On 3 June 2019, Illawarra Retirement Trust (IRT) lodged a Form F40 application for orders in relation to a transfer of employees pursuant to s.318 and s.319 of the Fair Work Act 2009 (Cth) (FW Act).

[2] On 5 June 2019 the matter was allocated to me. On that day I directed that:

“…[2] Directs that:

(a) By 4:00pm on Thursday, 13 June 2019, the Applicant must serve a copy of these Directions, the Form F40 Application and accompanying documents to:

i. Any transferring employee;

ii. Any existing or anticipated transferring employee; and,

iii. Any relevant employee organisation.

(b) By 4:00pm on Friday, 14 June 2019, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with Direction [2](a).

(c) By 4:00pm on Friday, 21 June 2019, the Applicant must file in the Commission and serve on any affected employee and any relevant employee organisation an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application.

(d) By 4:00pm on Friday, 28 June 2019, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing chambers.johns.c@fwc.gov.au) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application.

[3] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for hearing at 12:00 pm on Friday, 5 July 2019, in Sydney.”

(FWC Directions)

[4] On 13 June 2019, in accordance with direction [2](b) the Applicant provided a signed copy of the Statutory Declaration of Mr Richard Walsh, Head of People and Culture – Aged Care Centres. Mr Walsh set out the steps he had taken to comply with the FWC Directions.

[5] Also on 13 June 2019, the Applicant, in accordance with direction [2](c) filed a statement of Mr Walsh in support of its application.

[6] To date, no submissions in opposition to the order sought have been received.

[7] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 and s.319 of the FW Act have been met and an order in the terms sought should be made.

[8] An order will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the court was Illawarra Retirement Trust, an application concerning instruments associated with a new employer and the transfer of employees. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant sought an order to ensure that the new employer adhered to the terms of the superannuation trust deeds, which were designed to protect the retirement savings of the transferred employees.

The central legal issues revolved around the interpretation and enforcement of the superannuation trust deeds. The applicant argued that the new employer, by accepting the transfer of employees, implicitly agreed to be bound by the terms of the trust deeds. The court needed to determine whether the new employer was indeed bound by these terms and, if so, what actions could be taken to enforce the trust deeds.

The court found that the new employer, by engaging with the transferred employees and assuming control over their employment conditions, had indeed entered into an implied agreement to adhere to the superannuation trust deeds. The court emphasised the importance of protecting the retirement savings of employees, especially during transitions in employment. The court granted the order sought by the applicant, ensuring that the new employer would comply with the trust deeds to safeguard the retirement benefits of the transferred employees.

The court's final order mandated that the new employer adhere to the terms of the superannuation trust deeds, ensuring that the retirement savings of the transferred employees were protected and managed according to the agreed terms. The decision underscored the court's commitment to enforcing agreements that protect employee benefits during employment transitions.

Illawarra Retirement Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established