Anglican Community Services T/A Anglicare
[2023] FWC 2686
•16 OCTOBER 2023
| [2023] FWC 2686 |
| 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 T/A Anglicare
(AG2023/3212)
| Aged care industry | |
| COMMISSIONER CRAWFORD | SYDNEY, 16 OCTOBER 2023 |
Application for an order relating to instruments covering new employer and transferring employees – orders made
BACKGROUND
An application has been made by Anglican Community Services (Anglicare) to the Fair Work Commission (the Commission) for orders pursuant to s.318 of the Fair Work Act 2009 (FW Act).
Anglicare seeks orders in the following terms:
Orders that from 1 November 2023,
a)pursuant to section 318(1)(a) of the Fair Work Act 2009 (Act), the Presbyterian Aged Care, NSWNMA and HSU Enterprise Agreement 2017 - 2020 will not cover the Applicant or any transferring employee (as defined in section 311(2) of the Act) who commenced employment with the Applicant on or after 1 November 2023 (Transfer Date); and
b)pursuant to section 318(1)(b) of the Act, the Anglican Community Services Enterprise Agreement 2017 (Applicant Enterprise Agreement) will cover any transferring employee (as defined in section 311(2) of the Act) who commenced employment with the Applicant on or after the Transfer Date in a classification covered by the Applicant Enterprise Agreement until the Applicant Enterprise Agreement is terminated or replaced in accordance with the Act (as amended or replaced from time to time).”
The application consists of a Form F40 - Application for orders in relation to transfer of business dated 12 September 2023 and an affidavit from Yvette McDonald sworn on 12 September 2023.
The effect of the orders is for the Anglican Community Services Enterprise Agreement 2017 (Anglicare EA) to cover the defined “transferring employees” instead of the Presbyterian Aged Care, NSWNMA and HSU NSW Enterprise Agreement 2017 – 2020 (Presbyterian EA).
The Presbyterian EA covers the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The Anglicare EA also covers the ANMF and HSU.
I listed the application for Mention on 20 September 2023. The Mention was attended by representatives for Anglicare, the ANMF and HSU. I decided to provide the parties with an opportunity to file further material in relation to the application and listed the matter for report-back.
On 6 October 2023, Anglicare’s representative wrote to the Commission and provided:
· Undertakings; and
· Proposed orders.
Anglicare also indicated that the ANMF and HSU have consented to the application given the undertakings and requested that the application be determined on the papers. I consider it is appropriate to do so.
LEGISLATION
The relevant provisions in the FW Act are:
“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.”
CONSIDERATION
Transfer of business
Section 311 of the Act sets out when a transfer of business occurs. I am satisfied it is likely that there will be a transfer of business within the meaning of s.311(1) of the Act based on Ms McDonald’s affidavit which confirms:
· Anglicare is acquiring 79 independent retirement living units and an aged care home, both located at Paddington, from Presbyterian Aged Care NSW & ACT (Presbyterian). The anticipated completion date is 1 November 2023.
· The terms of sale required Anglicare to offer employment to approximately 139 employees of Presbyterian that are covered by the Presbyterian EA.
· Anglicare has made offers in accordance with the sale terms and around 76 Presbyterian employees had accepted offers from Anglicare when Ms McDonald swore her affidavit on 12 September 2023. The employment is being offered on the basis it will commence on the completion date and that the Presbyterian employees will resign from their employment with Presbyterian effective this same date.
Transferable instrument
Section 312 of the Act details instruments that may transfer:
“312 Instruments that may transfer
Meaning of transferable instrument
(1) Each of the following is a transferable instrument:
(a) an enterprise agreement that has been approved by the FWC;
(b) a workplace determination;
(c) a named employer award.
…”
The Presbyterian EA was approved by the Commission on 23 March 2018 and pursuant to s.312(1) of the Act is a transferrable instrument.
Who may apply for an order?
The application has been made by Anglicare, the new employer. The requirement under s.318(2) has therefore been met.
Section 318(3) – Matters that the FWC must take into account
Section 318(3)(a) – the views of the new employer and the employees who would be affected by the order
Section 318(3)(a)(i) – the views of the new employer
Anglicare clearly supports the making of the orders it seeks.
Section 318(3)(a)(ii) – the views of the employees
I am satisfied based on Ms McDonald’s affidavit and the position of the ANMF and HSU that the relevant employees support the application.
The views of Anglicare and the employees weigh in favour of making the orders.
Section 318(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
Anglicare has helpfully provided undertakings to provide further clarity on this issue for all employees. A copy of the undertakings is attached to this decision and will be attached to any orders issued. I am satisfied based on a comparison of the Anglicare EA and the Presbyterian EA that employees will not be disadvantaged by the order and this view is reinforced by the undertakings provided by Anglicare. This factor weighs in favour of making the orders.
Section 318(3)(c) – if the order relates to an enterprise agreement—the nominal expiry date of the agreement
The Presbyterian EA nominally expired on 30 June 2020. The Anglicare EA also nominally expired on 30 June 2020. I consider this to be a neutral factor.
Section 318(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
No submissions have been made by any party indicating that the transferable instrument would have a negative impact on the productivity of the new employer’s workplace. In the circumstances, this matter weighs in favour of making the order sought.
Section 318(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
I accept Anglicare’s submission that it will incur significant economic disadvantage if it is required to engage employees at the Paddington facilities under two separate enterprise agreements. This weighs in favour of making the orders.
Section 318(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
I accept Anglicare’s submission that its business synergy will be enhanced if it is able to employ all the relevant workers under the Anglicare EA. This weighs in favour of making the orders.
Section 318(3)(g) – the public interest
I have taken into account whether it is in the public interest to grant the orders sought, including the opportunity afforded for the employees to transfer employment and the views expressed in support of the application by the ANMF and HSU on behalf of the employees. Anglicare will continue the important work currently being performed by Presbyterian at the Paddington facilities. Making the orders will assist Anglicare in carrying out this important work. I am satisfied it is in the public interest to make the orders sought. In the circumstances, this matter weighs in favour of making the orders sought.
Conclusion
Having considered the matters above, while there is one neutral consideration, it is apparent that all other matters weigh towards the granting of the application sought. Taking into account each of the matters set out in s.318(3) of the Act, I am satisfied that the orders as sought should be granted. The orders will be issued concurrently with this decision.
The orders will come into operation in relation to each transferring employee on 1 November 2023.
COMMISSIONER
Determined on the papers.
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