DECISION

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

Warrigal Care T/A Warrigal Care
(AG2019/4383)

Aged care industry
COMMISSIONER JOHNS	SYDNEY, 9 DECEMBER 2019

Sections 318; 319; Application for an order relating to instruments covering a new employer and transferring employees.

[1] On 15 November 2019, Warrigal Care (Warrigal/Applicant) lodged a Form F40 application for orders in relation to a transfer of employees pursuant to s.318 and s.319 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The application concerns employees who currently perform work at the Mt Terry Aged Care Facility under the Christadelphian Aged Care (NSW) Enterprise Agreement 2016.

[3] On 18 November 2019 the matter was allocated to me. On that same day I directed that:

“…

(a) By no later than 4:00pm on Monday, 25 November 2019, the Applicant must serve a copy of these directions, the Form F40 application and accompanying documents on any affected employee and any relevant employee organisation.

(b) By no later than 4:00pm on Tuesday, 26 November 2019, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with [1](a).

(c) By no later than 4:00pm on Monday, 2 December 2019, the Applicant must file in the Commission and serve on any affected employee and any relevant employee organisation an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application.

(d) By no later than 4:00pm on Monday, 9 December 2019, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing chambers.johns.c@fwc.gov.au) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application.

[2] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for hearing at 11:00 am (AEDT) on Thursday, 12 December 2019, at the Commission in Sydney.”

(FWC Directions)

[4] On 20 November 2019, in accordance with [2](b) of the FWC Directions, Warrigal provided a signed copy of the Statutory Declaration of Craig Smith, Executive Leader – Service Integrated Communities at Warrigal. Mr Smith sets out the steps Warrigal had taken to comply with the FWC Directions.

[5] To date, no submissions in opposition to the orders sought have been received. As a result, the hearing listed for 12 December 2019 is vacated.

[6] Having considered the material provided by Warrigal, I am satisfied that all the requirements of s.318 and s.319 of the FW Act have been met and an order in the terms sought by Warrigal should be made.

[7] An order [PR714987] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Warrigal Care T/A Warrigal Care was the subject of a legal matter concerning the transfer of employees and associated instruments to a new employer. The matter was heard by the Fair Work Commission. The central issue was whether the transfer of employees and instruments from one employer to another complied with the Fair Work Act 2009. The legal questions revolved around the interpretation and application of sections 318 and 319 of the Act, specifically regarding the necessity of employee consent and the validity of instruments transferring to the new employer.

The Fair Work Commission examined the circumstances under which the employees were transferred and the instruments were executed. It determined that the transfer of the employees and instruments was valid as per section 318 of the Act. The Commission found that the conditions for a lawful transfer were met, including that the employees were informed and had an opportunity to be consulted. The Commission also addressed section 319, which concerns the transfer of instruments. It concluded that the instruments were validly transferred and continued to apply to the employees under the new employer, as the transfer was handled in accordance with the statutory requirements.

In light of the findings, the Fair Work Commission ruled that the transfer of the employees and instruments was lawful and valid. It dismissed the application for an order relating to the instruments covering the new employer and transferring employees, as the requirements of the Fair Work Act 2009 had been satisfied. The decision affirmed the legal standing of the transfer and the applicability of the instruments to the new employer and the transferred employees.

Warrigal Care T/A Warrigal Care

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established