Anglican Retirement Villages (Diocese of Sydney) T/A Anglican Retirement Villages

[2016] FWC 4948

[2016] FWC 4948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 319 - Application for an order relating to instruments covering new employer and non-transferring employees

Anglican Retirement Villages (Diocese of Sydney) T/A Anglican Retirement Villages
(AG2016/3738; AG2016/3739)

DEPUTY PRESIDENT SAMS SYDNEY, 25 JULY 2016

Application for an order relating to instruments covering new employer and non-transferring employees.

[1] This Decision deals with two applications, filed Anglican Retirement Villages (Diocese of Sydney) t/as Anglican Retirement Villages (the ‘applicant’), pursuant to ss 319 and 320 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’), pursuant to s 319(1)(b) of the Act, that the ANGLICARE Retail and Factory Enterprise Agreement 2013-2016 [AE402414] (the ‘Retail Agreement’) and the Anglicare Chesalon Enterprise Agreement 2010-2013 [AE880977] (the ‘Chesalon Agreement’) (collectively, the ‘Agreements’) will cover relevant non-transferring employees commencing employment with the applicant on or after 1 July 2016. The applicant also seeks orders pursuant to ss 320(2)(a), (b) and (c) of the Act to vary terms of each of the Agreements dealing with coverage, paid parental leave entitlements and leave without pay. Relevantly, the New South Wales Nurses and Midwives’ Association, the Australian Nursing Federation, the Health Services Union and United Voice are covered by the Chesalon Agreement.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

…

319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.

320 Variation of transferable instruments

Application of this section
 (1)  This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument
(2)  The FWC may vary the transferable instrument:

(a)  to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

(b)  to remove an ambiguity or uncertainty about how a term of the instrument operates if:

(i)  the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii)  the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or

(c)  to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

Who may apply for a variation
(3)  The FWC may make the variation only on application by:

(a)  a person who is, or is likely to be, covered by the transferable instrument; or
(b)  if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that the FWC must take into account
(4)  In deciding whether to make the variation, 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 transferable instrument as varied;

(b)  whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(c)  if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;

(d)  whether the transferable instrument, without the variation, 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, without the variation;

(f)  the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g)  the public interest.

Restriction on when variation may come into operation
(5)  A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

(a)  the time when the transferable instrument starts to cover the new employer;

(b)  the day on which the variation is made.

[3] The applicant relied on an affidavit of Mr Adam Leonard, the General Manager Human Resources. He explained that the applications arose in the context of a decision made by the Synod of the Anglican Diocese of Sydney to merge the applicant with Sydney Anglican Home Mission Society (‘Anglicare’), which was intended to take effect on 1 July 2016. He explained that of approximately 1,400 employees employed by Anglicare, 741 were covered by the Chesalon Agreement, 72 by the Retail Agreement and 407 by the Social, Community, Home Care and Disability Services Award 2010. A further 200 were award free employees. The applicant intended to offer employment to the existing Anglicare employees. All of the applicant’s employees are covered by the Anglican Retirement Villages (ARV) Staff Agreement (the ‘ARV Agreement’), which has a nominal expiry date of 5 October 2010. It was desirable that employees of the applicant working at the Chesalon facilities be covered by the Chesalon Agreement, which contained a number of terms more beneficial than the ARV Agreement, including, a more ‘condensed’ span of hours, higher casual loading, greater access to long service leave and a higher travel allowance rate.

[4] Similarly, Mr Leonard believed it was desirable that all employees working in the retail and factory divisions of Anglicare’s existing retail and factory divisions be covered by the Retail Agreement, especially in light of the fact that the applicant had not previously operated retail or factory outlets. The possible coverage of additional modern awards would add unnecessary complexity to the applicant’s industrial arrangements. Mr Leonard explained that the variations sought were intended to codify leave entitlements previously addressed in Anglicare’s policies, which would no longer be applicable.

[5] At a hearing of the application on 11 July 2016, Mr B Gee, Solicitor appeared with Mr A Leonard for the applicant. He clarified that the order sought in relation to the Chesalon Agreement was not intended to cover non-transferring employees engaged in the community care aspect of the applicant’s business, as these were covered by the ARV Agreement. He also provided correspondence from the Unions indicating that they did not oppose the orders sought by the applicant.

[6] Having considered the materials filed by the applicant and the consent of the relevant Unions, I intend to make the orders sought. In doing so, I have taken all of the matters in s 319(3) and 320(4) into account; in particular, the views of the applicants, the employees and the Union. I am satisfied that there is no significant disadvantage to the employees if the orders are granted and, conversely that there would be a negative impact on the productivity of the applicant’s workplace should the orders not be granted. For the sake of completeness, I am satisfied that granting the orders would not be contrary to the public interest (ss 319(3)(g), 320(4)(g)). Orders giving effect to my conclusions are published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR583211>