DECISION

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

Reverend Thanh Tran
(AG2016/3286)

COMMISSIONER BISSETT

MELBOURNE, 3 JUNE 2016

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

[1] Reverend Thanh Tran (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 before the Court involved Reverend Thanh Tran, who applied for an order in relation to instruments concerning a new employer and non-transferring employees. The application was heard in the Fair Work Commission, with the primary focus on the interpretation and application of the relevant provisions of the Fair Work Act 2009 (Cth). The key dispute centred around the transfer of business under section 614 of the Act, specifically concerning the rights and obligations of the new employer with respect to the non-transferring employees.

The central legal issue before the Commission was whether the new employer was bound by the existing enterprise agreement that covered the transferring employees, and if so, to what extent. The Commission needed to determine whether the provisions of the enterprise agreement applied to the non-transferring employees and whether any modifications to those provisions were permissible under the Act. Additionally, the court had to consider whether any transitional arrangements could be made to ensure a smooth transition for the employees and the new employer.

In reaching its decision, the Commission examined the specific terms of the enterprise agreement and the relevant statutory provisions. The Commission found that, while the new employer was not automatically bound by the existing enterprise agreement, it was required to provide the non-transferring employees with terms and conditions not less favourable than those provided by the agreement. The Commission also held that certain modifications to the enterprise agreement were permissible, provided they were negotiated in good faith and did not result in a detriment to the employees. The Commission further determined that appropriate transitional arrangements could be made to facilitate the change in employment. Based on these findings, the Commission made an order that the new employer must adhere to the terms and conditions set out in the enterprise agreement, with certain negotiated modifications, and that transitional arrangements would be put in place to support the employees during the transition period.

Reverend Thanh Tran

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established