Albury Wodonga Health

[2015] FWC 6075

[2015] FWC 6075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768BA - Application for an order about coverage for transferring employees under a state instrument

Albury Wodonga Health
(AG2015/4584)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 3 SEPTEMBER 2015

Coverage for transferring employees under a state instrument.

[1] A conference in this matter was held by the Commission on 2 September 2015.

[2] The application contained special conditions which will continue to apply.

[3] Firstly, it was agreed that, consistent with the inter-government agreement setting out industrial relations principles to apply to AWH –

1. No employee will be compulsorily transferred from the rehabilitation service in New South Wales to the rehabilitation service in Victoria;

2. Employees who elect not to transfer will be absorbed within the Albury workforce.

3. Employees who elect to transfer will cease to be employees of the NSW Ministry of Health and will become employees of AWH.

4. Offers of employment by AWH will be on terms that, in overall terms, will result in no net disadvantage to the employee’s existing terms and conditions of employment as they stand immediately prior to the offer being made.

[4] Secondly, to achieve the objectives above, the parties agreed that –

1. Employees taking up employment with AWH will be employed under the enterprise agreement that applies to like employees already employed by AWH in Victoria in rehabilitation services

2. The relevant NSW State Award(s) will no longer apply to such employees once they commence employment with AWH.

3. A small number of provisions in the NSW State Awards which are more beneficial than the relevant enterprise agreement have been identified by the parties and will be preserved for agreed periods in each employee’s contract of employment, refer Schedule A (two relevant Schedules attached to this Decision).

[5] In relation to the Fair Work Act 2009, section 768BA(3), the parties stated

(a) the employees through their union(s) and the new employer consent to the orders sought.

(b) through the preservation of relevant conditions in the contracts of employment and the application of the relevant enterprise agreement, all employees accepting an offer of employment will in fact be better off than remaining under the State Award(s).

(c) not relevant.

(d) it is difficult to quantify the effect maintaining the State Award would have on productivity other than noting that having all like employees under a common industrial instrument is more conducive to a homogenous team environment.

(e) It is not seriously contended that the State Award would cause significant economic disadvantage to the AWH.

(f) There are significant differences between the enterprise agreement which covers physiotherapists and administrative officers in Victoria as compared to the State Award which covers physiotherapists and administrative officers in New South Wales. As the inpatient rehabilitation service is to be located exclusively in Victoria and employees will be engaged exclusively by AWH, it is logical that the agreement apply to all employees engaged in the service, regardless of their original location of work. The contractual arrangements to be put in place will provide appropriate protection for NSW employees wanting to remain in the rehabilitation service albeit based in Victoria. Through this application, all new employees thereafter will be engaged under the one industrial instrument and therefore the lack of synergy with the NSW State Award will not be an issue going forward.

(g) It is in the public interest that public health services in the Albury Wodonga region are provided in a way which maximises productivity and efficiency. The Fair Work Commission’s role in achieving that outcome is to endorse and put into effect the agreement of the employer and the relevant unions which provides for uniformity of conditions of employment on an ongoing basis while preserving benefits for individual employees accepting offers of employment to remain in the rehabilitation service. Achieving productivity and fairness through an emphasis on enterprise-level collective bargaining is consistent with the objects of the Fair Work Act 2009.

[6] Subject to the special conditions detailed above, it was agreed by consent that the Health Industry Status of Employment (State) Award would not cover Albury Wodonga Health (AWH) and any employee of AWH formerly employed in the rehabilitation service at Albury Hospital in the New South Wales Health Service pursuant to the Health Services Act 1997 (NSW).

[7] Further, that the Victorian Public Health (Health Professionals, Health and Allied Services, Managers and Administrative Officers) Enterprise Agreement 2011-2015 would cover all employees of AWH employed in the classifications listed in the Agreement.

[8] An Order is contained in PR571494.

DEPUTY PRESIDENT

Appearances:

Mr D McLaughlin of Rigby Cooke for the applicant

Printed by authority of the Commonwealth Government Printer

<Price code C, PR571493>

Schedule A
Specific Conditions that will apply to you based on the NSW Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award; NSW Health Service Health Professionals (State) Award, and Health Industry Status of Employment (State) Award

Below are the specific conditions based on the NSW Health Employees’ Administrative Staff (State) Award; Health Employee’s Conditions of Employment (State) Award, and Health Industry Status of Employment (State) Award that will apply to you and form part of the terms and conditions of this employment contract. Where these conditions are more generous than the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, these conditions will apply to the exclusion of the Enterprise Agreement.

1. Wage rate - you will remain on your current NSW State Award hourly pay rate where it is higher than the equivalent Victorian pay rate until such time as the pay rate in the Enterprise Agreement (or any successor Enterprise Agreement) exceeds the “frozen” NSW pay rate.
2. Wage increases - subject to paragraph 1 above, pay increases after this date will be as per the percentage increase to the minimum wage awarded by the Fair Work Commission Annual Wage Review in July each year.

3. Long service leave - if, at the time of the Rehabilitation Services transfer, you have 10 or more years of service with NSW Health, your long service leave accrual rate will be as set out in Clause 13 – Long Service Leave ofthe NSW Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award until 30 years of service is achieved. After 30 years of service the long service leave accrual rate shall be as set out in the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, or such other applicable industrial instrument at that time.

4. Paid maternity leave - if you become pregnant within the first 12 months of the Rehabilitation Services transfer to Wodonga and you are entitled to maternity leave, you will be entitled to be paid for 14 weeks of your maternity leave.

Schedule A
Specific Conditions that will apply to you based on the NSW Health Employees’ Administrative Staff (State) Award; Health Employee’s Conditions of Employment (State) Award, and Health Industry Status of Employment (State) Award

Below are the specific conditions based on the NSW Health Employees’ Administrative Staff (State) Award; Health Employee’s Conditions of Employment (State) Award, and Health Industry Status of Employment (State) Award that will apply to you and form part of the terms and conditions of this employment contract. Where these conditions are more generous than the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, these conditions will apply to the exclusion of the Enterprise Agreement.

5. Wage rate - you will remain on your current NSW State Award hourly pay rate where it is higher than the equivalent Victorian pay rate until such time as the pay rate in the Enterprise Agreement (or any successor Enterprise Agreement) exceeds the “frozen” NSW pay rate.
6. Wage increases - subject to paragraph 1 above, pay increases after this date will be as per the percentage increase to the minimum wage awarded by the Fair Work Commission Annual Wage Review in July each year.

7. Long service leave - if, at the time of the Rehabilitation Services transfer, you have 10 or more years of service with NSW Health, your long service leave accrual rate will be as set out in Clause 17 – Long Service Leave ofthe NSW Health Employee’s Conditions of Employment (State) Award until 30 years of service is achieved. After 30 years of service the long service leave accrual rate shall be as set out in the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2011-2015, or such other applicable industrial instrument at that time.

8. Paid maternity leave - if you become pregnant within the first 12 months of the Rehabilitation Services transfer to Wodonga and you are entitled to maternity leave, you will be entitled to be paid for 14 weeks of your maternity leave.