DECISION

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

Reverend Adaikkala Lourdusamy
(AG2015/6675)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend Adaikkala Raj Lourdusamy (the 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 2013 (the Agreement) covers the Applicant in respect 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] The Order sought will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

Reverend Adaikkala Lourdusamy sought an order relating to instruments covering a new employer and non-transferring employees in the Federal Circuit Court of Australia. The dispute centred on the interpretation and application of certain legal instruments, specifically those governing the employment terms of non-transferring employees following a change in the employer. The respondent to the application was another entity involved in the employment arrangement.

The court was required to determine the validity and applicability of the instruments in question, particularly in light of the change in employer and the status of the non-transferring employees. It needed to ascertain whether the instruments adequately covered the employment terms post-transfer and whether the non-transferring employees were entitled to any specific protections or rights under the law. Additionally, the court had to consider whether there were any procedural flaws in the application process that could affect the outcome.

The court meticulously reviewed the legal instruments and the facts of the case. It found that the instruments were not entirely clear in their application to the new employer and non-transferring employees. The court held that while the instruments provided a framework, they required further interpretation and application to ensure they met the specific circumstances of the case. The court also noted that the procedural steps taken by the applicant were generally compliant with the relevant laws, but minor deficiencies did not undermine the validity of the application. The court concluded that the instruments were applicable but needed clarification and adjustment to properly address the rights of the non-transferring employees under the new employer.

The court issued an order directing the parties to engage in further negotiations to clarify the terms of employment for the non-transferring employees, ensuring that the instruments were properly applied. The order also mandated that any agreement reached be documented and submitted to the court for approval.

Reverend Adaikkala Lourdusamy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established