Anglican Community Services T/A Anglicare

[2019] FWC 4257

[2019] FWC 4257

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
(AG2019/1664)

Social, community, home care and disability services
COMMISSIONER JOHNS	SYDNEY, 21 JUNE 2019

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

[1] On 20 May 2019, Anglican Community Services T/A Anglicare (Applicant) lodged a Form F40 application for orders in relation to a transfer of business pursuant to s.318 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The circumstances in which the application is made are as follows:

a) Mission Australia operates a number of retail stores/social enterprises known as “Mission Australia Op Shops”.

b) On 28 June 2019 Mission Australia will cease operating a number of shops in New South Wales (at Dapto, Nowra, Wollongong and Thirroul) (NSW Shops).

c) The Applicant has entered into an agreement with Mission Australia to operate the NSW Shops on and from 1 July 2019.

d) The activities to be undertaken by the Applicant at the NSW Stores with the same, or substantially the same as activities currently undertaken by Mission Australia.

e) 39 permanent or casual employees (Affected Employees) currently employed by Mission Australia will be affected by the decision made by Mission Australia to cease operating the NSW Shops.

f) Mission Australia proposes to terminate the employment of the Affected Employees by reason of redundancy.

g) The Applicant proposes to make offers of employment to the Affected Employees.

h) The terms and conditions of employment of the Affected Employees are currently governed by the Mission Australia Service Delivery Enterprise Agreement 2016-2019 [AE423267] (Transferring Agreement).

i) The Australian Municipal, Administrative, Clerical and Services Union (ASU), Independent Education Union of Australia (IEU) and United Voice (UV) were bargaining representatives for the Transferring Agreement and are covered by it.

j) By reason of the transaction between Mission Australia and the Applicant, unless the proposed order is made, the Applicant will be covered by the Transferring Agreement.

k) The Applicant does not want to be covered by the Transferring Agreement. It wants the terms and conditions of employment of the Affected Employees to be governed by the Anglican Community Services Enterprise Agreement 2017 [AE427795] (Anglican Agreement).

[3] In support of the application, the Applicant filed an Affidavit (with annexures) of Kathryn Elizabeth Piggott, the Applicant’s Human Resources Manager, sworn on 20 May 2019.

[4] Section 318 of the FW 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.”

[5] On 21 May 2019 the matter was allocated to me. On that day (as amended, 3 June 2019), I directed that:

“[2] …

(a) By 4:00pm on Tuesday, 28 May 2019, the Applicant must serve a copy of these Directions, the Form F40 Application and accompanying documents to:

i. Any transferring employee;

ii. Any existing or anticipated transferring employee; and,

iii. Any relevant employee organisation.

(b) By 4:00pm on Wednesday, 29 May 2019, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with Direction [2](a).

(c) By 4:00pm on Tuesday, 4 June 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 4:00pm on Tuesday, 11 June 2019, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing [email protected]) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application.

[3] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for Hearing at 9:00am on Thursday 13 June 2019, in Sydney via video conferencing to Commissioner Johns in Melbourne.”

(FWC Directions)

[6] On 29 May 2019, the Applicant provided an unsigned copy of the Statutory Declaration of Ms Kathryn Elizabeth Piggott. Ms Piggott set out the steps she had taken to comply with the FWC Directions.

[7] On 30 May 2019, a signed copy of the Statutory Declaration was filed by the Applicant. It was apparent from the Statutory Declaration that Ms Piggott had only taken steps to comply with FWC Directions in so far as it related to transferring employees. That is to say, there was no evidence that Ms Piggott had served documents on any relevant employee organisations in compliance with direction [2](a)(iii).

[8] On 4 June 2019, the Applicant, in accordance with direction [2](b) filed:

a) An Outline of Argument dated 4 June 2019; and,

b) A draft order dated 4 June 2019

[9] By 11 June 2019 no opposition had been raised in relation to the application, including by any Transferring Employee.

[10] On 13 June 2019 my chambers raised with the Applicant’s solicitor the apparent failure to comply with direction [2](a)(iii).

[11] Later that day the Applicant’s solicitor wrote to the Commission explaining that,

“On instructions, I confirm the Applicant read “relevant employee organisation” in the Directions to be a reference to any employee organisation who is or who may have become involved in the consultations and discussions about the acquisition of the Op Shops by Anglicare, including but not limited to the making of any offer of employment to a Mission Australia employee who is impacted by this matter (MA Employee).

No impacted employee has referred the Applicant to an employee organisation, and no union or other employee organisation has contacted the Applicant to become involved in this matter on behalf of any impacted employee at any time before or since the Statutory Declaration of Ms Piggott dated 30 May 2019, where Ms Piggott describes the steps taken to serve each MA Employee with a copy of the Application, the accompanying documents and the Directions.

The Applicant has taken no step to deliberately avoid, omit or exclude any relevant employee organisation – but so far as the Applicant is aware there is no relevant employee organisation who has any member impacted by this matter, or any other material interest in representing the views of any impacted employee in relation to the Application.

In the absence of any involvement by an employee organisation the Applicant was respectfully of the view there was no “relevant employee organisation” that was required to be served with the Application, the accompanying documents or the Directions.”

[12] I was not satisfied with that response. While I accept that “relevant employee organisation” was not defined in the FWC Directions it ought readily have been apparent to the Applicant that any employee organisation covered by the Transferring Agreement might have an interest in the matter and should be considered to be a “relevant employee organisation”. Notwithstanding, I accept that the Applicant was not deliberately avoiding contact with relevant employee organisations. It misunderstood the FWC Directions.

[13] The matter was listed for hearing on 19 June 2019. In advance of the same I caused my chambers to make contact with the ASU, IEU and UV. Each union was provided with a copy of the application and documents filed by the Applicant.

[14] At the hearing:

a) the Applicant was represented by Mr B Gee, Partner, FCB Group;

b) the ASU was represented by Mr M Rizzo;

c) UV was represented by Mr S Bull; and,

d) the IEU was represented by Mr K Warren.

[15] At the hearing both the IEU and UV indicated that they did not oppose the application. Mr Rizzo on behalf of the ASU asked for time to consider the matter (he had only had the material for a little over 3 hours).

[16] Consequently, the following Directions were issued,

“Further to the mention and directions hearing conducted today by the Fair Work Commission (Commission), the Commission directs that by no later than 4:00pm on Friday, 21 June 2019, any employee organisation that is covered by the Mission Australia Service Delivery Enterprise Agreement 2016-2019 must file in the Commission and serve on Anglican Community Services (the Applicant) a note indicating whether it:

a) Opposes the application in AG2019/1664, and, if so, on what basis; or

b) Does not oppose the application.”

[17] To date, no submissions in opposition to the order sought have been received.

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

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

COMMISSIONER

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