DECISION

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

Reverend John McGinty
(AG2015/6680)

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 McGinty OMI (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 matter involved Reverend John McGinty, who applied to the court for an order concerning instruments related to a new employer and non-transferring employees. The dispute arose under the Fair Work Act 2009, and the application was heard in the Federal Circuit Court of Australia. The court was tasked with determining whether certain employees, who were not transferred to a new employer, were still bound by the terms of the existing enterprise agreement.

The central legal issue before the court was whether the non-transferring employees were subject to the ongoing obligations and protections of the enterprise agreement post-transfer. This involved interpreting the relevant provisions of the Fair Work Act and the specific terms of the enterprise agreement in question. The court had to consider whether the employees who remained with Reverend McGinty were still covered by the agreement when the majority of employees transferred to a new employer.

In delivering the judgment, the court examined the language of the enterprise agreement and the legislative framework provided by the Fair Work Act. The court found that the agreement explicitly included provisions for the continuation of its terms for employees who remained with Reverend McGinty. Given that the agreement did not contain any specific exclusion or termination clause for these employees, the court ruled that the non-transferring employees were indeed still bound by the agreement. The court's decision was grounded in a literal interpretation of the agreement's terms and the absence of any legislative provision suggesting otherwise.

The court ordered that the non-transferring employees remain subject to the terms of the existing enterprise agreement. This decision ensured that these employees continued to benefit from the protections and conditions outlined in the agreement, pending any further amendments or negotiations.

Reverend John McGinty

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established