DECISION

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

Reverend Nguyen Huy
(AG2015/6692)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend Nguyen Viet Huy SJ (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

In the case of Reverend Nguyen Huy, the applicant sought an order relating to certain instruments that covered a new employer and non-transferring employees. The application was made in the Fair Work Commission, a body established under the Fair Work Act 2009 (Cth). The applicant, Reverend Nguyen Huy, was a former employee of a former employer, and the dispute centred around the interpretation and application of specific instruments that governed employment conditions, particularly in relation to the transfer of employees to a new employer.

The primary legal issue before the Commission was whether the instruments in question allowed for the transfer of certain conditions and entitlements to a new employer and whether these conditions applied to employees who did not transfer to the new employer. The applicant argued that certain conditions should not apply to the non-transferring employees, while the respondent contended that the instruments mandated the transfer of all conditions to the new employer, regardless of whether the employees themselves transferred.

The Commission carefully considered the terms of the instruments and the legislative framework governing employment transfers. It concluded that the instruments did indeed facilitate the transfer of conditions to the new employer, but that these conditions only applied to the transferring employees. The Commission found that the non-transferring employees were not bound by the conditions that applied to the transferring employees under the new employer. This decision was based on a detailed interpretation of the statutory provisions and the specific terms of the instruments.

The Fair Work Commission ordered that the conditions specified in the instruments would apply to the new employer only in relation to the transferring employees. The non-transferring employees were not subject to these conditions. This ruling provided clarity on the application of employment instruments in the context of employee transfers, ensuring that the rights and obligations of non-transferring employees were protected.

Reverend Nguyen Huy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established