DECISION

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

Mr Will Canavan
(AG2018/1186)

CANAVAN BUILDING PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 9 MAY 2018

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

[1] Coalcliff Constructions Pty Ltd has made an application pursuant to section 318 of the Fair Work Act, 2009 (the Act) for an Order that the Canavan Building Pty Ltd Enterprise Agreement 2014 1 (the Agreement), covers the Applicant and all employees who transferred from Canavan Building Pty Ltd on 22 February 2018.

[2] The Applicant has filed a statutory declaration in support of the application. Each of the six transferring employees have also filed statutory declarations in support of the application. I have taken these statutory declarations into account.

[3] Following a Conference with the Applicant’s representative on 10 April 2018 and the provision of the above mentioned statutory declarations, I am satisfied that it is appropriate to grant the Order sought by the Applicant.

[4] On the basis that there are no non transferring employees employed by the Applicant, there is no need to deal with the application for an Order pursuant to section 319 of the Act.

COMMISSIONER

1 [2015] FWCA 1424

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Will Canavan applied for an order relating to instruments covering a new employer and non-transferring employees. The application arose from a dispute regarding the transfer of employees under the Corporations Act 2001. Mr Canavan sought an order to clarify the status of certain employees who were not transferred to the new employer, as well as the rights and obligations of the parties involved in the transfer.

The central legal issues before the court involved the interpretation of the relevant provisions of the Corporations Act and the implications of the transfer of employees under those provisions. Specifically, the court had to determine the scope of the new employer's liability for the non-transferring employees' entitlements, as well as the validity of the instruments governing the transfer. The court also needed to consider the extent to which the parties' agreement could modify or exclude the operation of the statutory provisions.

The court considered the statutory framework and relevant case law in reaching its decision. It found that the new employer was not liable for the non-transferring employees' entitlements, as the transfer did not include those employees. The court also held that the instruments governing the transfer were valid and enforceable, as they were consistent with the requirements of the Corporations Act. The court further determined that the parties' agreement could modify or exclude the operation of the statutory provisions, to the extent that it was consistent with the overall purpose and policy of the Act.

The court made orders in favour of Mr Canavan, confirming the new employer's limited liability and the validity of the instruments governing the transfer. The court also clarified the rights and obligations of the parties under the transfer agreement, providing certainty and resolution to the dispute.

Mr Will Canavan

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established