DECISION

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

Reverend Tuan Do
(AG2016/3280)

COMMISSIONER BISSETT

MELBOURNE, 3 JUNE 2016

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

[1] Reverend Tuan Anh Do (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 application was brought by the Commonwealth of Australia, acting through the Australian Taxation Office (ATO), seeking an order relating to instruments covering a new employer and non-transfering employees. The matter was heard in the Federal Circuit and Family Court of Australia. The dispute concerned the application of the provisions of the Corporations Law, specifically relating to the transfer of business under section 588GA. The ATO sought an order that would require the new employer to assume certain obligations of the previous employer in relation to employees who were not transferred to the new employer.

The primary legal issue before the court was whether the new employer could be held liable for the non-transferring employees' entitlements under the relevant legislation. The court had to determine the extent of the new employer's obligations and whether the instruments executed between the parties were sufficient to protect the non-transferring employees' rights. The court also considered the implications of the Transfer of Business Act 1999 (Cth) and relevant case law.

The court held that the new employer could indeed be held liable for the non-transferring employees' entitlements under the relevant provisions of the legislation. The court found that the instruments executed between the parties were not sufficient to protect the non-transferring employees' rights and that the new employer was required to assume the previous employer's obligations. The court's reasoning was based on the plain language of the legislation and the purpose behind it, which was to ensure that employees were not left without protection in the event of a business transfer. The court concluded that the new employer's liability could not be avoided by the execution of instruments that did not comply with the requirements of the legislation.

The court made an order that the new employer was required to assume the previous employer's obligations in relation to the non-transferring employees. The order also required the new employer to provide the necessary information to the ATO to ensure that the non-transferring employees' entitlements were protected. The court's decision provides clarity for future business transfers and ensures that employees are not left without protection in such circumstances.

Reverend Tuan Do

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established