DECISION

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

Reverend Terence Bowman
(AG2015/6676)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 24 NOVEMBER 2015

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

[1] Reverend Terence Bowman MSC (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 matter of Reverend Terence Bowman, the applicant sought an order relating to instruments covering a new employer and non-transferring employees. The application was brought before the Fair Work Commission, an Australian workplace relations tribunal. The case revolved around the transfer of business under section 616 of the Fair Work Act 2009 and the subsequent application of the relevant transfer provisions.

The primary legal issue before the Commission was whether the instruments covering the non-transferring employees could be lawfully altered to reflect the new employment arrangements. Specifically, the Court needed to determine if the new employer could be bound by the terms of the instruments in the absence of an agreement to the contrary. This involved interpreting the transfer provisions and assessing the effect of the transfer on the existing employment conditions.

The Fair Work Commission examined the statutory framework governing the transfer of businesses and the rights of non-transferring employees. The Commission noted that the transfer provisions aimed to protect the employees' conditions and entitlements during the transition. The Court concluded that the new employer could not be bound by the terms of the instruments unless there was a specific agreement to that effect. The Commission emphasised the importance of protecting the rights of non-transferring employees and ensuring that the transfer process did not disadvantage them. The Court dismissed the application, affirming that the instruments remained in force unless otherwise agreed upon.

No further orders were made by the Court. The decision underscores the need for clear agreements when transferring businesses to protect the rights of all employees involved.

Reverend Terence Bowman

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established