DECISION

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

Reverend Bijo Joseph Adichilamackal
(AG2016/3299)

COMMISSIONER BISSETT

MELBOURNE, 3 JUNE 2016

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

[1] Reverend Bijo Joseph Adichilamackal (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

The case involved Reverend Bijo Joseph Adichilamackal, who brought an application before the court seeking an order concerning instruments that covered a new employer and non-transferring employees. The dispute arose within the context of employment and the transfer of certain rights and obligations under the Fair Work Act 2009 (Cth). The court had to determine whether the instruments in question should be varied to reflect the new employer and the employees who did not transfer to the new employer.

The central legal issue the court addressed was whether the instruments could be appropriately varied to account for the new employer and the non-transferring employees. This involved interpreting the relevant provisions of the Fair Work Act, including sections 595 and 596, which deal with the transfer of businesses and the continuity of employment. The court needed to balance the rights and obligations of the parties involved and determine whether such variation was permissible and consistent with the legislative intent.

The court found that the instruments could indeed be varied to reflect the changes in the employment scenario. The reasoning was based on a detailed interpretation of the statutory provisions and the specific circumstances of the case. The court considered that allowing the variation was necessary to ensure the instruments remained effective and relevant to the current employment relationships. The court concluded that the proposed variation did not contravene the legislative intent and was in line with the purpose of protecting the rights of employees during a business transfer. Consequently, the court granted the application and ordered the variation of the instruments as requested.

Reverend Bijo Joseph Adichilamackal

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established