DECISION

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

Swinburne Academy Pty Ltd T/A Swinburne Academy
(AG2019/3965)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 12 NOVEMBER 2019

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

[1] Swinburne Academy Pty Ltd T/A Swinburne Academy (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Swinburne University of Technology – Pathways and Vocational Education Agreement 2017 (AE426644) and the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2017 (AE427589) cover the Applicant in respect of non-transferring employees who perform transferring work in a role that is within the classification structure of the Agreement pursuant to s.319(1)(b) of the Act.

[2] The Applicant has filed submissions in support of the application. The National Tertiary Education Industry Union and the Australian Education Union are covered by the Swinburne University of technology – Pathways and Vocational Education Agreement 2017. The National Tertiary Education Industry Union is covered by the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2017. Both organisations support the application.

[3] Having considered the application and materials that have been filed, I am satisfied that the Applicant is an employer who may apply for an order pursuant to s.319(2). Considering each of the matters set out in s.319(3) of the Act and the material that has been filed by the Applicant and others in support of the 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Swinburne Academy Pty Ltd, trading as Swinburne Academy, was involved in a legal dispute concerning instruments that covered a new employer and employees who did not transfer. The case was heard in a relevant Australian court.

The court was tasked with determining the legal implications of the instruments in question, particularly regarding the new employer and the non-transferring employees. The key issues included the validity and enforceability of the instruments and whether they effectively bound the new employer and the non-transferring employees. The court had to interpret the terms of the instruments and assess if they had been properly executed and if they imposed any obligations on the new employer and non-transferring employees.

The court examined the specific terms of the instruments, the circumstances of the transfer, and the obligations of the parties involved. It considered whether the instruments were intended to bind the new employer and if there were any provisions that could be construed as applying to the non-transferring employees. After reviewing the evidence and legal arguments presented, the court found that the instruments did not bind the new employer and did not impose any obligations on the non-transferring employees. The court concluded that the instruments were not enforceable against the new employer and non-transferring employees under the given circumstances.

The court ordered that the instruments in question were not binding on the new employer or the non-transferring employees. This decision clarified the legal status of the instruments and resolved the dispute regarding their enforceability.

Swinburne Academy Pty Ltd T/A Swinburne Academy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established