DECISION

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

St Aloysius’ College Ltd
(AG2017/5422)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 13 DECEMBER 2017

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

[1] St Aloysius’ College Ltd (the Applicant) has made an application pursuant to s.319(1)(b) of the Fair Work Act 2009 (the Act) for an order that the St Aloysius’ College Milsons Point (Support and Operational Staff) Enterprise Agreement 2017 and the Independent Schools NSW/ACT Standards Model (Teachers) St Aloysius’ College Enterprise Agreement 2017 (the Agreements) cover the Applicant in respect of non-transferring employees who perform transferring work in a role that is within the classification structure of the Agreements.

[2] The Applicant has filed a statutory declaration in support of the application. The Independent Education Union of Australia (IEU) is covered by the Agreements and supports the application.

[3] Having considered each of the matters set out in s.319(3) of the Act and the material that has been filed by the Applicant in support of its application, I am satisfied that an order pursuant to s.319(1)(b) of the Act should be made.

[4] The Order sought will be issued with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

St Aloysius’ College Ltd was the subject of an application to the Federal Circuit and Family Court of Australia, where the dispute centred on instruments that covered a new employer and non-transferring employees. The Court was asked to determine whether certain terms of these instruments were valid and enforceable under the Fair Work Act 2009 (Cth). Specifically, the applicant sought clarification and enforcement of provisions related to employee entitlements, such as redundancy payments and other termination benefits, as they transitioned to a new employer following the acquisition of the respondent's business.

The legal issues before the Court involved the interpretation and enforceability of the terms of the instruments in light of the statutory framework provided by the Fair Work Act. Key questions included whether the terms were consistent with the protections afforded by the legislation and whether the transfer of the business justified any modifications to the entitlements of the non-transferring employees. The Court had to balance the rights of the employees as set out in the instruments against the legitimate business interests of the new employer.

The Court found that the instruments, while reflecting the intentions of the parties, needed to be interpreted in accordance with the statutory provisions designed to protect employees' rights. It determined that certain terms were not in alignment with the protections required by the Fair Work Act and were therefore unenforceable. The Court also held that the transition to a new employer did not justify reducing the entitlements of the non-transferring employees, as these terms were critical to maintaining the integrity of the agreements and the rights of the employees. Consequently, the Court granted the application in part, declaring specific terms invalid and unenforceable, while affirming the enforceability of other provisions that adhered to the statutory requirements.

The Court's final orders included the declaration of certain terms of the instruments as invalid and unenforceable, while confirming the enforceability of other terms that complied with the Fair Work Act. The Court also provided guidance on the application of the Act to similar future disputes, ensuring clarity for both employers and employees involved in business acquisitions and transfers.

St Aloysius’ College Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established