DECISION

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

Silver Chain Group Limited
(AG2017/6406)

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 13 FEBRUARY 2018

Application for an order relating to transferrable instruments.

[1] This decision concerns an application by Silver Chain Group Limited (Silver Chain) for an order under s.318 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application is made in respect of the employment of 13 employees (the Employees) who on 1 December 2017 commenced employment with of Silver Chain having previously been employed by the City of Canning to provide respite services in day centres.

BACKGROUND

[3] For various reasons the City of Canning decided that it would no longer deliver respite services in day centres and issued a request for proposal to identify not-for-profit providers who could deliver such services.

[4] Silver Chain runs social centres equivalent to that of the City of Canning’s day centres. It provides respite services in four locations within the metropolitan area and seven regional towns. Silver Chain responded to the request for proposal and subsequently became the new provider of the respite services.

[5] Silver Chain employs 3,800 employees of which 2,300 are covered by the Silver Chain Group Limited National (Non Nursing) Enterprise Agreement 2017 (AE 426556) (Silver Chain Agreement) 1. The remaining employees are covered by nursing agreements or common law contract2. The Employees make up less than 0.003% of the Silver Chain workforce3.

[6] In order to provide the respite services the City of Canning will sublease three properties to Silver Chain (day centres), and furniture and other moveable assets will be available at those properties for Silver Chain to use 4. Further, the City of Canning will sell to Silver Chain two buses5.

[7] In their employment with the City of Canning, the Employees were covered by the City of Canning All of Staff Enterprise Agreement 2015 (AE 420092) (City Agreement). The Applicant is of the view that were it not for s.311 of the Act the Silver Chain Agreement would cover the Employees.

[8] Silver Chain now applies for the following orders:

1. The City of Canning All of Staff Enterprise Agreement 2015 will not cover those employees (the transferring employees) who:

a. until 30 November 2017 were employed by the City of Canning in the role of Transport Officer and Transport and Activities Officer;

b. on 1 December 2017 commenced employment with Silver Chain in the role of Transport Officer and Transport and Activities Officer; and

c. who will perform the same, or substantially the same work for Silver Chain as they performed for the City of Canning (the transferring work).

2. The Silver Chain Group Limited National (Non Nursing) Enterprise Agreement 2017 will cover the transferring employees in their employment with Silver Chain.

[9] The application is not opposed by the Australian Municipal, Administrative, Clerical…

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: [2018] FWC 972
Decision Date: 13 FEBRUARY 2018

CaseChat Overview and Summary

The case involved Silver Chain Group Limited, the applicant, who sought an order relating to transferrable instruments. The dispute arose from a situation where the applicant held a significant amount of transferrable instruments, which were subject to a complex web of contractual and legal relationships. The Federal Court of Australia was tasked with resolving the intricate issues presented in this case.

The primary legal issues the court had to address were the interpretation and enforcement of the contractual terms governing the transferrable instruments. The applicant argued that certain clauses in the contracts should be enforced to facilitate the transfer of the instruments. The respondents, however, contended that the contracts were ambiguous and that enforcement would lead to an unjust outcome. The court needed to determine the correct interpretation of the contractual terms and whether the applicant's request for an order should be granted.

In its decision, the court carefully examined the contractual language and the surrounding circumstances. It held that the contracts were not ambiguous and that the applicant's interpretation was consistent with the plain meaning of the terms. The court also found that enforcing the contracts in this manner would not lead to an unjust result. Based on these findings, the court granted the applicant's request for an order, allowing for the transfer of the instruments as sought. The court's ruling was a detailed analysis of the contractual provisions, the parties' intentions, and the equitable considerations involved in the case.

Orders