DECISION

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

Reverend Dishan Candappa
(AG2016/3291)

COMMISSIONER BISSETT

MELBOURNE, 3 JUNE 2016

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

[1] Reverend Dishan Candappa (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 applicant, Reverend Dishan Candappa, sought an order relating to instruments covering a new employer and non-transferring employees. The dispute arose in the Federal Circuit Court of Australia. The applicant, a former employer, sought to have certain transfer of business provisions applied to a new employer who had acquired some of the business’s assets. The new employer contested the application, arguing that the provisions did not apply to them and that they were not bound by the instruments.

The court was required to determine whether the transfer of business provisions applied to the new employer and, if so, whether they were bound by the terms of the instruments. The court examined the relevant statutory provisions and the terms of the instruments to ascertain the intentions of the parties involved. The court also considered the principles of equity and whether the application of the provisions would be just and equitable in the circumstances.

The court found that the transfer of business provisions did not apply to the new employer as they were not party to the original agreement. The court held that the provisions were intended to apply only to the original parties and their successors in title who expressly agreed to be bound by them. The court further held that it would not be just and equitable to extend the provisions to the new employer, who had not agreed to be bound by them. The court dismissed the application, noting that the new employer was not bound by the terms of the instruments.

The court did not make any specific orders as the application was dismissed. The new employer was not required to comply with the transfer of business provisions or any other terms of the instruments. The court's decision clarified the scope of the transfer of business provisions and the circumstances in which they apply to new employers.

Reverend Dishan Candappa

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established