Anglican Community Services
[2018] FWC 5884
•26 SEPTEMBER 2018
| [2018] FWC 5884 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Anglican Community Services
(AG2018/3423)
ARK HEALTH CARE GROUP, NSWNMA, ANMF NSW BRANCH AND HSU NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017 Aged care industry | |
COMMISSIONER JOHNS | MELBOURNE, 26 SEPTEMBER 2018 |
s.318 Application for an order relating to instruments covering a new employer and transferring employees.
[1] On 25 July 2018 Anglican Community Services (Applicant) applied for an order under section 318 of the Fair Work Act 2009 (the Act) dealing with instruments covering a new employer and transferring employees in the context of a transfer of business.
[2] On 9 July 2018, the Applicant acquired Ark Health Care (Parramatta) Pty Ltd’s aged care facility. The employees of this facility are covered by the Ark Health Care Group, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (Transferring Agreement).
[3] On 6 July 2018, the Applicant offered employment to all employees of this facility. Subsequently 116 employees accepted offers of employment made the Applicant (Transferring Employees).
[4] At its other facilities, employees of the Applicant are covered by,
a) the Anglican Community Services Enterprise Agreement 2017 (Applicant Enterprise Agreement) if they are not a “Facility Manager”; or
b) the Anglican Retirement Villages Diocese of Sydney (ARV) Staff Agreement (Applicant Staff Agreement) if they are a “Facility Manager”.
[5] The Applicant is seeking an order that,
a) the Transferring Agreement does not cover the Applicant or any transferring employees who have commenced, or will commence employment with the Applicant.
b) the Applicant Enterprise Agreement (if they are not a “Facility Manager”) and the Applicant Staff Agreement (if they are a Facility Manager) will cover the Transferring Employees.
[6] The initial application was accompanied by a supporting affidavit of Mr Adam Leonard, General Manager People and Culture for the Applicant, which corroborated the factual claims made in the application.
[7] In Directions dated 27 July 2018 (amended on 10 August 2018), the Applicant was directed to file materials in support of the application and serve the directions and application on any affected employee or relevant employee organisation. Any party opposing the application was directed to file its materials by 17 August 2018.
[8] On 17 August 2018, the Australian Nursing and Midwifery Federation, New South Wales Branch (ANMF) filed a submission outlining its opposition to the orders being sought, namely that:
a) The Applicant did not provide sufficient detail of how the Transferring Employees would not be disadvantaged by the Applicant Enterprise Agreement and Applicant Staff Agreement.
b) The Applicant Enterprise Agreement would disadvantage Transferring Employees in relation to the location of employment, the use personal of Leave, Long Service Leave and various allowances.
c) Applicant Staff Agreement applying to the “Facility Manager” is an outdated agreement, which does not have numerous features of modern agreements and has long been expired.
[9] The matter was listed for hearing on 17 September 2018.
Hearing
[10] During the course of the hearing the following evidence was marked and received and I have had regard to all of the material in coming to this decision:
EXHIBIT NO. | DESCRIPTION |
A1 | Affidavit from Adam Leonard Dated 24/07/2018 |
A2 | Statutory Declaration of Adam Leonard Dated 02/08/2018 |
A3 | Statutory Declaration of Megan Bowe Dated 31/07/2018 |
A4 | Applicant's Outline of Argument Dated 10/08/2018 |
A5 | Further Affidavit of Adam Leonard Dated 10/08/2018 |
A6 | Comparison of Enterprise Agreement Terms Document |
A7 | Applicant's Reply Submission Dated 24/08/2018 |
A8 | Affidavit In Reply of Adam Leonard Dated 24/08/2018 |
A9 | Classification Mapping Document |
ANMF1 | ANMF Submissions Dated 17/08/2018 |
ANMF2 | Supplementary Submissions of ANMF |
[11] The Applicant was represented by Ms M Bowe of FCB Workplace Law.
[12] The ANMF was represented by Ms P Kelly.
[13] In relation to the Applicant Enterprise, the Applicant made the undertaking that it would not apply Clause 10 (Location of Employment) to Transferring Employees, 1 on the basis that this would be the only undertaking sought by the ANMF. The ANMF agreed and consequently withdrew its objection to the proposed order in relation to the Applicant Enterprise Agreement.
[14] In relation to the Applicant Staff Agreement, the “Facility Manager” whom this agreement applies to, did not oppose the proposed order. Consequently, the ANMF did not press their objections to the Applicant Staff Agreement. 2
[15] Finally, the Applicant requested that if the orders are granted, that they should be effective from the start of the first pay period after the date the orders are made. 3
Medication Allowance
[16] After the conclusion of the hearing, the ANMF emailed the Commission stating that they had failed to raise that the Medication Allowance located in the Transferring Agreement was not included in the Applicant Enterprise Agreement, which allegedly may result in a loss of the remuneration paid for ordinary hours for Transferring Employees.
[17] The parties were given until 24 September 2018 to conclude discussions relating to this issue.
[18] On 24 & 25 September 2018, the ANMF advised the Commission that the Applicant and the ANMF had reached the following agreement in relation to the Medication Allowance:
a) Any permanent Nursing Assistant from former Ark Health Care Group Parramatta residential aged care facility when required to give out medications on weekday shifts (including those weekday shifts that attract the afternoon and night shift penalties), will be paid the applicable hourly rate under the Applicant Enterprise Agreement, plus an allowance (make-up allowance), so that the combined amount equals the hourly rate plus medication allowance they would have received if they were paid their hourly rate of pay under the Transferring Agreement plus the medication allowance. For absolute clarity, applicable shift penalties will also apply.
b) This will apply until the end of the final pay period in Financial Year 2018/19. At that time the make-up allowance will cease to be paid and the hourly rate will increase in line with the applicable Applicant Enterprise Agreement hourly rate.
[19] On 26 September 2018, the Applicant confirmed by email that this agreement had been reached.
Consideration
[20] Section 318 of the Act provides:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that the FWC may make
(1) The FWC may make the following orders:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;
(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.
Who may apply for an order
(2) The FWC may make the order only on application by any of the following:
(a) the new employer or a person who is likely to be the new employer;
(b) a transferring employee, or an employee who is likely to be a transferring employee;
(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;
(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).
Matters that the FWC must take into account
(3) In deciding whether to make the order, the FWC must take into account the following:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the order;
(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;
(c) if the order relates to an enterprise agreement--the nominal expiry date of the agreement;
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when order may come into operation
(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:
(a) the time when the transferring employee becomes employed by the new employer;
(b) the day on which the order is made.”
[21] Having considered the material provided by the Applicant and the subsequent withdrawal of the ANMF’s objections on the basis of the undertakings mentioned above at [15] and [18], I am satisfied that all the requirements of s.318 of the Act have been met and an Order in the terms sought should be made.
[22] An Order will issue with this decision.
COMMISSIONER
Appearances:
Ms M Bowe, FCB Workplace Law for the Applicant.
Ms P Kelly for the Australian Nursing and Midwifery Federation-New South Wales Branch.
Hearing details:
17 September 2018 by telephone.
Printed by authority of the Commonwealth Government Printer
<AE425503 PR700625>
1 PN50-69.
2 PN72.
3 PN79.
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