DECISION

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

Reverend Ngoc ‘Joseph’ Tran
(AG2015/6691)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend Ngoc ‘Joseph’ Tan Tran SSS (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 Ngoc ‘Joseph’ Tran, an applicant, sought an order relating to instruments covering a new employer and non-transferring employees. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant, Reverend Tran, who was previously employed by a company, sought an order regarding the transfer of certain employment-related instruments to a new employer who had acquired the business. The dispute centred on whether these instruments, which were not covered by the relevant legislation, should transfer to the new employer or remain with the original company.

The court was required to determine the applicability of the relevant legislation to the instruments in question and whether the transfer of these instruments to the new employer was mandatory or discretionary. The primary consideration was whether the instruments were covered by the provisions of the legislation that mandate the transfer of certain employment-related instruments upon a change in ownership of a business.

The court examined the provisions of the relevant legislation and found that the instruments in question were not explicitly covered by the statutory requirements for transfer. It concluded that these instruments did not fall within the scope of the legislation that mandates the transfer of certain employment-related instruments. Consequently, the court held that the applicant’s request for an order to transfer these instruments to the new employer was not supported by the legislation. The instruments remained with the original company.

The court’s decision was based on a detailed analysis of the statutory provisions and their application to the facts of the case. The court found that the instruments did not meet the criteria for mandatory transfer under the legislation. As a result, the applicant’s application was dismissed. The court did not make any orders for the transfer of the instruments to the new employer.

Reverend Ngoc ‘Joseph’ Tran

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established