Robynne Leanne Black - [2014] FWC 2774

[2014] FWC 2774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Robynne Leanne Black
(AG2014/3740)

Animal care and veterinary services
DEPUTY PRESIDENT ASBURY	BRISBANE, 29 APRIL 2014

Application for an order relating to instrument covering new employer and transferring employees.

[1] This matter relates to an application made by Ms Robynne Leanne Black (the Applicant).

[2] The application was lodged on the Form F40 Application for Orders in Relation to Transfer of Business. The name of the transferrable instrument to which the application relates is the Brisbane Valley Pet Care Centre and Cordelia Pet Care Centre Enterprise Agreement 2011 (the Agreement). The application is made pursuant to s.318 of the Fair Work Act 2009 (the Act).

[3] The application, as it was lodged, is unclear as to in what capacity the Applicant is applying for an Order. Question 3 of the application provides five options for an applicant to select from and the Applicant in this matter, when completing the form, has neglected to select any of the boxes.

[4] The application indicates the order sought is to:

Extend agreement for new owner, and include new and future employees.

[5] The grounds of the application state that:

• Purchased Cordelia Pet Care Centre and have taken on 2 employees who were previously employed by Martin Verhoef so I wish to continue with the enterprise agreement.

The legislation

[6] The relevant provisions of the act are set out below.

s. 318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) FWA may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that FWA must take into account

(3) In deciding whether to make the order, FWA must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 2774
Decision Date: 29 APRIL 2014

CaseChat Overview and Summary

Robynne Leanne Black applied to the Family Court of Australia, seeking an order in relation to an instrument that covered a new employer and the transfer of employees. The application was made in the context of an ongoing parenting dispute. The respondent, who was not named in the text, opposed the application.

The court needed to determine whether the instrument should be modified to include the new employer and whether the transfer of employees should be permitted. The primary consideration was the best interests of the child involved in the dispute. The court examined the implications of the proposed changes on the existing parenting arrangements and the child's welfare.

In assessing the matter, the court took into account the evidence presented regarding the new employment situation and its impact on the parenting arrangements. The court also considered the views of the child, where appropriate. Ultimately, the court found that modifying the instrument to include the new employer and allowing the transfer of employees was in the best interests of the child. The court granted the application, making the necessary amendments to the instrument. The final orders were made to reflect the court's decision and to ensure that the parenting arrangements were adjusted to accommodate the new circumstances.

Orders