DECISION

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

Reverend Simon Grainger
(AG2015/6693)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend Simon Grainger (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 Simon Grainger applied to the Federal Circuit and Family Court of Australia for an order relating to instruments covering a new employer and non-transferring employees. The respondent to the application was Australian Building and Construction Commission. The dispute arose from a transfer of business under section 533 of the Fair Work Act 2009. The primary issue before the court was whether the tribunal had the jurisdiction to hear an application by a non-transferring employee who had not been an employee of the transferring employer at the time of the transfer.

The court considered the scope of section 533 of the Fair Work Act, which deals with the transfer of business and the implications for employee entitlements. The court noted that section 533(1)(a) explicitly provides that the section does not apply to a person who was not an employee of the transferring employer at the time of the transfer. Given that the applicant was not an employee of the transferring employer at the time of the transfer, the court held that the tribunal did not have jurisdiction to hear the application. The court further emphasised that the clear wording of the statute limited the application of section 533 to those who were employees of the transferring employer at the time of the transfer.

As a result of the court's decision, the application was dismissed for lack of jurisdiction. The court's reasoning was based on the clear statutory language that limited the scope of section 533 to employees of the transferring employer at the time of the transfer. The court's decision underscored the importance of adhering to statutory provisions and their explicit limitations when determining jurisdictional questions.

Reverend Simon Grainger

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established