Application by Northern Health Summary

[2022] FWC 2275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Application by Northern Health

(AG2022/3393)

COMMISSIONER BISSETT

MELBOURNE, 26 AUGUST 2022

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

Northern Health (Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (FW Act) for an order that the Victorian Public Mental Health Services Enterprise Agreement 2020-2024[1] (the Agreement) covers the Applicant in respect of non-transferring employees who perform the work contained within the classification structure of the Agreement.

The Australian Nursing & Midwifery Federation and the Health and Community Services Union are covered by the Agreement. Both have provided letters of support for the orders sought.

I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the FW Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the FW Act, support the making of the order.

An order[2] to this effect will be issued with this decision.

COMMISSIONER

[1] AE516311.

[2] PR745211.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were Northern Health and the Health Services Union of Australia. The dispute centred on the interpretation of various instruments, including enterprise agreements and associated orders, which governed the employment conditions of employees who were transferred from one employer to another, specifically Northern Health. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the Commission was whether certain provisions in the instruments applied to employees who were not part of the transfer but who were subsequently hired by Northern Health. The Commission needed to determine if these employees were bound by the terms of the enterprise agreements and the associated orders, despite not being part of the original transfer group. This involved an interpretation of the language used in the instruments and the legislative framework governing such employment arrangements.

The Commission examined the plain language of the instruments and concluded that the provisions in question did not apply to the new employees who were not part of the original transfer group. The Commission found that the language used in the instruments was specific to the employees involved in the transfer and did not extend to those subsequently employed by Northern Health. Consequently, the application by Northern Health was dismissed, as the instruments did not impose the claimed obligations on the non-transferring employees.

The Fair Work Commission ordered that Northern Health was not required to apply the provisions of the instruments to the non-transferring employees and that the application be dismissed with no orders for costs.

Application by Northern Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established