DECISION

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

Reverend John Healy
(AG2015/6673)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend John Healy (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 John Healy, the applicant, sought an order relating to instruments covering a new employer and non-transferring employees. The respondent, the Australian Building and Construction Commission (Commission), opposed the application. The matter was heard in the Federal Court of Australia. The primary dispute was over the interpretation and application of the Fair Work Act 2009, specifically in relation to the transfer of business provisions.

The court was tasked with determining whether the instruments covering the new employer and the non-transferring employees were valid and enforceable under the Fair Work Act. A secondary issue was whether the Commission had the authority to challenge the instruments under the specific provisions of the Act. The applicant argued that the instruments were valid and that the Commission's challenge was beyond its statutory powers. The Commission contended that the instruments were invalid as they did not comply with the requirements of the Act and that it had the requisite authority to challenge them.

The court held that the instruments in question were indeed valid and enforceable under the Fair Work Act. It found that the Commission did not have the authority to challenge the instruments in the manner it had done. The court reasoned that the Act's provisions did not grant the Commission the power to unilaterally invalidate agreements between employers and employees. Furthermore, the court found that the Commission's actions were inconsistent with the statutory framework and that the instruments were in compliance with the relevant provisions. The court granted the application, affirming the validity of the instruments and rejecting the Commission's challenge.

Reverend John Healy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established