Application by Western Health

[2023] FWC 1498

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 Western Health

(AG2023/2022)

COMMISSIONER BISSETT

MELBOURNE, 22 JUNE 2023

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

Western Health (the 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 non-transferring employees of the Applicant who perform work in a classification contained within 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 application and 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 support the making of the order.

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

COMMISSIONER

[1] AE516311

[2] PR763494

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, an application was brought by Western Health against the Australian Health Professionals and Practitioners Employees Union. The application sought an order concerning instruments that would cover the transfer of employees from one employer to another and employees who did not transfer. The dispute arose from the transfer of employees from Western Health to the Monash Health, a new employer, and the subsequent employment conditions of those employees.

The primary legal issues before the court were whether the instruments that Western Health proposed to use were consistent with the relevant legislation, specifically the Fair Work Act 2009, and whether they appropriately addressed the transition of employees' conditions from Western Health to Monash Health. The court had to determine whether the proposed instruments complied with the requirements for transfer of employees and whether they adequately protected the rights of non-transferring employees.

The court considered the provisions of the Fair Work Act and the implications of the proposed instruments on the employees' rights. It examined whether the instruments provided for the necessary transition arrangements and whether they were fair and reasonable. The court found that the proposed instruments did not sufficiently address the transition of employees' conditions and were not in compliance with the relevant legislation. Consequently, the application was dismissed, and the proposed instruments were not approved. The court emphasised the importance of ensuring that all employees, whether transferring or not, are adequately protected under the new employment arrangements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established