Application by Yooralla

[2021] FWC 6266

[2021] FWC 6266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Application by Yooralla
(AG2021/7953)

COMMISSIONER BISSETT MELBOURNE, 5 NOVEMBER 2021

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

[1] On 20 October 2021 Yooralla made an application for an order relating to instruments covering a new employer and transferring employees pursuant to s.318 of the Fair Work Act 2009 (FW Act). The application seeks an order of the Fair Work Commission relating to current employees of Uniting (Victoria and Tasmania) Limited (Uniting), specifically 20 nurses who are prospective employees of Yooralla (the Transferring Employees).

[2] Yooralla is seeking an order that the Wesley Mission – Arthur Preston Residential Service, ANF and HSU Collective Agreement 2006-2008 (Transferrable Instrument) will not cover the Transferring Employees or Yooralla, and that the Yooralla Allied Services Agreement 2018 will cover each of the Transferring Employees.

[3] The application contained detailed grounds and submissions and was accompanied by a witness statement in support of the orders sought of Mr David Thorsen, Executive Director People and Culture at Yooralla. The statement addressed matters relevant to the application before the Commission. Its contents are not in dispute and are accepted by me for the purpose of determining the application.

[4] The grounds in support of the application state:

•  Yooralla is acquiring a business operated by Uniting at its Burwood East and Glen Waverley sites and associated assets.

•  On 1 October 2021, Yooralla entered into a Memorandum of Understanding with Uniting in relation to the proposed transaction, which confirms the parties’ intent to implement the proposed transaction and enter into a legally binding Sale and Purchase Agreement.

•  The completion of the Sale and Purchase Agreement is expected to occur on 6 December 2021.

•  Yooralla will enter into contracts of employment with up to 112 current employees of Uniting including the Transferring Employees who will commence working for Yooralla on 6 December 2021.

•  As such a transfer of business will occur under s.311 of the FW Act as:

•  the employment of the Transferring Employees by Uniting will terminate and they will become employees of Yooralla within three months after the termination; and

•  the Transferring Employees will perform the same or substantially the same work for Yooralla as they performed for Uniting, using assets previously owned by Uniting and acquired by Yooralla as a result of the Sale and Purchase Agreement.

•  The Transferable Instrument will cover the Transferring Employees.

•  The Yooralla Allied Services Agreement 2018 (Yooralla Allied Services Agreement) covers all of Yooralla’s nurses who are covered by the classifications in the Yooralla Allied Services Agreement. Non-transferring Yooralla employees will not be covered by the Transferring Instrument.

•  If the orders sought are not made there will be a different industrial safety net outcome for employees performing the same or substantially the same work for Yooralla, resulting in inconsistencies in the workforce management and payroll practices required to be applied to employees performing the same role at each of the acquired sites.

[5] Yooralla submits that it does not wish Transferring Employees to be covered by the Transferable Instrument. Yooralla considers the industrial arrangements of all its employees should be, as much as possible, standardised and consistent and it wishes to minimise any inequities between Transferring Employees, non-transferring employees and its existing employees. Yooralla submits that the Yooralla Allied Services Agreement is tailored to Yooralla’s operations and is the most efficient and effective means of governing the employment of Yooralla’s nurses.

[6] Yooralla says that it has engaged in consultation with the transferring employees and the Australian Nursing and Midwifery Federation (ANMF), being the union covered by the Transferable Instrument and that is entitled to represent the industrial interests of the Transferring Employees.

[7] Yooralla will employ and offer contracts to all Transferring Employees on terms and conditions no less favourable overall compared to the Transferrable Instrument. All transferring employees were provided with information packs on or around 8 October 2021 which included relevant documentation and information about Yooralla, the transfer of business and how it will affect employees. Yooralla conducted four roadshows with employees between 4 October 2021 and 15 October 2021 to provide them with further information about the Proposed Transaction and to explain how it will affect them. In addition, Yooralla has offered casual transferring employees the opportunity to transfer to permanent employment, which has been accepted in principle by a number of employees.

[8] Yooralla submits that it has informed the Transferring Employees of this application and at the date of this application, 106 employees (including 20 nurses) had confirmed their intention to transfer. No transferring employees have raised any objection to the application.

[9] Yooralla further submits that:

•  Employees will not be disadvantaged if the application is granted.

•  Yooralla’s workplace productivity would be negatively impacted if the application is not granted.

•  Yooralla would suffer economic disadvantage if the application is not granted.

•  Business synergy would suffer if the application is not granted.

•  The granting of the application would not be contrary to public interest.

[10] Upon receipt of the application my Chambers contacted ANMF and sought its views on the orders sought. ANMF advised that it supports the application.

[11] In the absence of any objection to the application, and the Applicant’s request that the matter be determined expeditiously, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[12] Section 318 of the Act sets out the circumstances in which an order such as that sought by Yooralla may be made by the Commission:

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.

[13] I have reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for proper basis for the making of the orders sought. I am satisfied that by virtue of the operation of the FW Act, if the orders sought were not made, the Transferring Employees would continue to be covered by the Transferring Instrument.

[14] Having examined and considered the application and the accompanying materials, and taking into account the provisions of s.318(3)(a)-(g) of the FW Act, I am satisfied that it is appropriate to make the orders sought under s.318(1)(a)-(b) of the FW Act.

[15] Pursuant to s.318 of the FW Act I intend to order 1 that the Wesley Mission – Arthur Preston Residential Service, ANF and HSU Collective Agreement 2006-2008 does not cover and will not cover Yooralla or the Transferring Employees, and that the Yooralla Allied Services Agreement 2018 will cover each of the Transferring Employees.

[16] In accordance with section 318(4) of the FW Act, the order I issue will have effect from the time when the Transferring Employees becomes employed by Yooralla or the date of the order, whichever occurs later.

COMMISSIONER

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 1 AC304828 PR735475.