Australian Nursing and Midwifery Federation
[2018] FWC 776
•22 FEBRUARY 2018
| [2018] FWC 776 [Note: This decision has been quashed - refer to the Full Bench decision dated 27 June 2018 [[2018] FWCFB 3807] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Australian Nursing and Midwifery Federation
(AG2017/5007)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 22 FEBRUARY 2018 |
Application for an order relating to instruments covering new employer and non-transferring employees.
[1] On 24 October 2017, the Australian Nursing and Midwifery Federation (the applicant) applied for orders under s.319(1)(b) and (c) of the Fair Work Act 2009 (the Act) that the Royal District Nursing Service Ltd Victorian Operations Enterprise Agreement 2016 1 (the RDNS agreement) cover non-transferring employees of RSL Care RDNS Limited (the new employer) performing transferring work in the State of Victoria and that the RSL Care Enterprise Agreement 20152 (the RSL agreement) does not and will not cover non-transferring employees of the new employer performing transferring work in the State of Victoria. As discussed in the interim decision, the orders sought were narrowed by the applicant.3
[2] The RDNS agreement was approved by the Fair Work Commission (the Commission) on 6 January 2017 and nominally expires on 1 June 2018 4. The RSL agreement was approved by the Commission on 15 March 2016 and nominally expires on 21 March 20195.
[3] In the absence of the orders sought by the applicant, the relevant non-transferring employees will be covered by the RSL agreement. This was not in dispute but accepted by the parties including during the interim proceedings, because the requirements of s.314(1)(d) are not met. If the RDNS agreement is to apply by operation of the Act, s.314(1)(d) requires that no other agreement apply to the non-transferring employees. However, this requirement is not met because the RSL agreement covers them.
[4] The applicant applied for interim orders on 8 November 2017 that the RDNS agreement cover non-transferring employees of the new employer performing transferring work pending hearing of the application for final orders. I issued my decision refusing the application for interim orders on 21 December 2017. 6
[5] The application for final orders was heard on 6 February 2018.
[6] The Health Services Union Victoria No. 3 Branch trading as the Victorian Allied Health Professionals Association (VAHPA) did not attend the hearing but advised in an email to the Commission on 6 February 2018 that it supported the applicant’s application and submissions in support of the application and wished its support to be a matter of record.
[7] In summary, the applicant seeks orders that the RDNS agreement apply to new employees performing transferring work, in place of the RSL agreement which applies by operation of ss.313-314 of the Act.
[8] I have had regard to all the submissions and evidence and the interim submissions and decision.
Relevant legislation
[9] Sections 3, 309, 314, 317 and 319 of the Act relevantly provide:
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
309 Object of this Part
The object of this Part is to provide a balance between:
(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and
(b) the interests of employers in running their enterprises efficiently;
if there is a transfer of business from one employer to another employer.
314 New non-transferring employees of new employer may be covered by transferable instrument
(1) If:
(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and
(b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and
(c) the non-transferring employee performs the transferring work; and
(d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;
then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.
(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.
(3) This section has effect subject to any FWC order under subsection 319(1).
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.
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover 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.’
Submissions
[10] The applicant filed interim submissions on 19 November 2017 and 18 December 2017, substantive submissions on 17 January 2018 and final submissions on 9 February 2018.
[11] The new employer filed interim submissions on 15 December 2017, substantive submissions on 30 January 2018 and final submissions on 7 February 2018.
[12] The submissions of the applicant and the new employer in relation to each criterion set out in s.319 are briefly summarised as follows:
Views of the employer and the employees – s.319(3)(a)
[13] It is agreed between the parties that the new employer would prefer that the relevant employees are covered by the RSL agreement and the relevant employees, if given a choice, would prefer to be engaged under the RDNS agreement. 7
Disadvantage to employees – s.319(3)(b)
[14] The applicant submits that a comparison is required of the relative position of employees if orders were or were not made, having regard to the Acts Interpretation Act 1901 (Cth) (AI Act), the objects of the Act and the objects of any relevant part thereof. The applicant further submits that ‘the construction which serves the objects must be preferred.’ 8
[15] The new employer submits that ‘there is no need to make reference to any extraneous materials as the meaning of s.319(3)(b), is not, in any way, ambiguous.’ 9 The new employer further submits that on the plain reading of the section, it ‘does no more than require the Commission to take into consideration if any employee would be disadvantaged by the making of the order’ and ‘there is no valid reason to read [the] clause as if it contains a requirement for comparison.’10
The nominal expiry date of the agreement – s.319(3)(c)
[16] It is agreed between the parties that the nominal expiry date of the RDNS agreement is 1 June 2018. The applicant submits that ‘the fact that parties will shortly be at liberty to negotiate a replacement instrument militates in favour of the making of the order[s] sought’. 11
[17] The new employer submits that ‘the parties have expressed wholly opposing views regarding the negotiation of a future agreement and therefore, it cannot be assumed that a short timeframe before the expiry of the [a]greement means a short timeframe for the making of a new [a]greement.’ 12 The new employer further submits that the granting of the orders will result in additional costs to the new employer and place the new employer in a less beneficial bargaining position.13
The impact of an order on productivity – s.319(3)(d)
[18] The applicant submits that, in the absence of the orders sought, the substantial reductions in remuneration and other benefits for relevant employees do not represent a “productivity benefit” and the new employer will be required to operate two parallel payroll arrangements within its RDNS operations, which would be inefficient and burden productivity. 14
[19] The new employer submits that the granting of the orders sought would perpetuate the need for maintaining two payroll arrangements, which would otherwise decrease over time, with the engagement of each non-transferring employee. The new employer states in its submissions that the issuing of the orders ‘will prevent a productivity benefit arising from a decrease in the resources necessary to support the payroll of employees covered by the transferred instrument.’ 15 The new employer contends that it would be placed in a less beneficial bargaining position if the orders sought were granted and this would also increase the likelihood of the perpetuation of two payroll arrangements for employees.16 Finally, the new employer submits that the productivity improvements provided for under the RSL agreement will be prevented from being achieved if the orders are granted.17
Significant economic disadvantage – s.319(3)(e)
[20] The applicant submits that no “disadvantage” arises as a result of the continued application of the RDNS agreement and the Commission ‘will not decline to exercise a discretion in relation to the instrument that ought apply to an employer merely because it would impose a “significant economic cost [on] the employer”’. 18
[21] The new employer submits that, as it is agreed between the parties that the terms and conditions in the RDNS agreement are superior to those in the RSL agreement, the RDNS agreement is therefore more costly to apply. 19 The new employer states in its submissions that ‘[b]ased on the objective measure of cost to serve, the anticipated economic disadvantage to the [new employer] over a 52 week period would be between $1.45 [m]illion and $2 [m]illion’ for replacement employees only and ‘[a]ny increase in staffing numbers would lead to additional economic disadvantage if the s.319 [orders are] granted.’20 The new employer also states that it would ‘suffer financial disadvantage [from] the maintenance of two significant payroll systems.’21
[22] Finally, the new employer asserts that ‘[i]t is agreed between the parties that in the absence of an order under [s.319], the instrument that ought [to] apply to [non-transferred] employees and therefore the employer of such non-transferred employees is the [RSL agreement].’ 22
Business synergy – s.319(3)(f)
[23] It is not disputed by the parties that the instruments [the RDNS agreement and the RSL agreement] are inconsistent in relation to wages and conditions. The applicant submits that there is ‘an absence of “business synergy” between the instruments’ and this ‘tells in [favour] of the making of [the orders], which would permit one instrument to continue to apply in the workplace.’ 23
[24] The new employer submits that irrespective of the outcome of the application, the RDNS agreement and the RSL agreement will both apply to employees as s.319 orders ‘can only apply to transferred work and therefore, any non-transferred work will be covered by the [RSL agreement].’ 24 The new employer further submits that ‘the two agreements have been operating in parallel since 19 November 2017 without any negative impact on the business’ and the ‘effective implementation of [the two agreements] since 19 November 2017 is evidence of the fact that there is business synergy between the two [a]greements.’25
The public interest – s.319(3)(g)
[25] The applicant submits that ‘a substantial reduction in the terms and conditions of employment afforded to employees within the scope, and during the life of, a negotiated and registered collective agreement:
a. does not serve the object of maintaining appropriate industrial standards;
b. does not serve the objects of the relevant Part of the Act…; [and]
c. does not serve the objects of the Act generally…’. 26
[26] The applicant seeks to rely on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Commonwealth Scientific and Industrial Research Organisation (CSIRO) 27 (CSIRO Case), highlighting that ‘the public interest in preferring to preserve the application of negotiated terms and conditions of employment over imposing imported arrangements has been expressly recognised by the Commission’.28
[27] The applicant asserts that the ‘[b]enefits to the [new employer], such as being able to pay substantially reduced wages or increased competitiveness are not “public interests”, but rather are “private interests”, which fall outside the scope of the interests embraced by the Act.’ 29
[28] The new employer submits that ‘the terms of the RDNS agreement [cannot] reasonably be considered to be an “appropriate industrial standard” where the outcome of applying that industrial standard result[s] in the cost of service delivery exceeding the funding to deliver the service’ and ‘the terms of the RDNS agreement are significantly more generous than industry standards.’ 30
[29] In its submissions, the new employer distinguishes the CSIRO Case, stating that the order sought in that case was under s.318 and ‘the granting of that order would have resulted in employees losing the benefit of an agreement which legally applied to them’ and seeks to argue that the applicant is seeking a ‘windfall benefit over and above the terms and conditions of the applicable agreement [the RSL agreement].’ 31
[30] Finally, the new employer submits that the applicant’s contention that the benefits to the new employer are “private interests” ‘fails to recognise that the perpetuation of the unsustainable situation where the cost of providing services exceeds the funding received to deliver the services is not directly relevant to the objects of the Act regarding employment.’ 32
Consideration
[31] In the CSIRO Case, the Commissioner refused to grant an application by the CSIRO and a separate application by the CEPU and placed ‘particular importance’ on the fact that a majority of employees considered that they would suffer disadvantage in subsequent years and similar matters if the CSIRO application for an order was granted and a new agreement was applied in place of the existing agreement:
‘While I do not elevate the criterion set out in s.318(3)(b) to a determinative position it is my view that the paragraph is of particular importance. If no employee were to be disadvantaged as a result of a s.318 order then much more weight could be given to factors such as the views of the employer and matters of productivity, cost and business synergy. In my view the evidence is clear in relation to this matter. While some or all employees could well be advantaged in monetary terms in the first year of operation of the CSIRO Agreement when taken together with the other elements of the offer (not least of which is the $7000 lump sum inducement to accept the offer) it is apparent that the majority of employees consider that they will suffer disadvantage overall in subsequent years. It is also apparent that some employees are not convinced that the offers made have the certainty and ease of enforceability of their current terms and conditions and the evidence appears to support them in this view.’ 33 [emphasis added]
[32] This present matter is different in nature. In the present case it is not in dispute that no or virtually no employee would suffer disadvantage if the application were granted. It is an agreed fact that the rates of pay if the application were granted would be higher, perhaps considerably higher, and that conditions would be as well. 34 In this case the applicant in fact seeks to argue that not granting the application would ‘disadvantage’ employees.35
Preliminary matters
[33] It is not in dispute that the application is within jurisdiction, although the form of the orders sought have been altered in submissions, as noted in the interim decision at paragraph 14 36.
Views of the employer and the employees – s.319(3)(a)
[34] The new employer prefers that the orders not be granted, while the employees who would be affected by the orders would prefer that the orders be granted. 37In my view this is a neutral factor.
Any employees would be disadvantaged by the order – s.319(3)(b)
[35] It is not in dispute, for reasons earlier discussed, that no or virtually no employees would be disadvantaged by the orders given the higher rates and conditions in the RDNS agreement compared to the RSL agreement. This case is, again as earlier noted, therefore of a different nature to the CSIRO Case, in which the majority of employees considered that they would be disadvantaged if the order sought by the employer was granted.
[36] However the applicant submits that the employees who would receive the benefit of the orders if they were granted would be disadvantaged if the orders were not granted. This may or may not be the case, but this is not what the subsection provides. The subsection requires me to have regard to whether or not employees would be disadvantaged if the orders were granted:
‘whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;’ 38 [emphasis added]
[37] There appears to be no employees, or very few, on the material before me, who would be disadvantaged by the orders.
[38] The applicant however raises a number of issues of construction to advance the submission that the provision has to be interpreted both positively and negatively, to see who would be disadvantaged if the orders were granted, and who would be disadvantaged if the orders were not granted. This could have been the provision, but it is not. The ordinary meaning of the language does not extend that far.
[39] The applicant seeks to persuade me that I should interpret the provision in the manner sought having regard to the s.309 objects, the previous s.318 and as interpreted in the CSIRO Case, and the AI Act. However, the objects and purpose of the Act are consistent with the ordinary meaning of the subsection. If the application is not granted, employees will still have their terms and conditions of employment under enterprise agreements protected, for example, employees will be covered by two enterprise agreements, the RDNS and RSL agreements. Similarly, the purpose or object of the Act will still be furthered if the application is not granted, within the AI Act. The CSIRO Case deals with a different factual position to the present matter in that the CSIROemployees would have been disadvantaged in subsequent years unlike the present matter. I do not agree that the subsection should be interpreted in the manner proposed by the applicant, which is contrary to the ordinary meaning of the language and in no way required by the various provisions referred to by the applicant. The present subsection in its ordinary meaning is compatible with the objectives contained in the provisions referred to by the applicant.
[40] In conclusion on the material before me I find that no or virtually no employee would be disadvantaged if the application is granted. Even if I were to adopt the different interpretation advanced by the applicant, in this case employees would be appropriately protected both by the award and the RSL agreement if the application was not granted, and it is difficult in those circumstances to find that they would be disadvantaged. This factor does not count in favour of the application being granted.
Nominal expiry date – s.319(3)(c)
[41] As the applicant submits, the nominal expiry date is 1 June 2018, which gives the parties some time to negotiate a replacement agreement, but not a great deal of time. This may or may not be a period of ‘short duration’, as the applicant described it, but there is nothing stopping both parties commencing discussions earlier. It may also be relevant that the parties are required, pursuant to cl.1.4(b) of the agreement, to undertake discussions on future conditions no later than 31 March 2018. There is nothing to prevent the applicant serving a log of claims, or the new employer doing the same, in the near future. This does not count in favour of the application being granted. If it does count it is not of great weight.
Negative impact on productivity – s.319(3)(d)
[42] The applicant submitted that a number of clauses of the RDNS agreement would negatively impact on productivity. In Schweppes Australia Pty Ltd v United Voice – Victoria Branch39 (Schweppes), a Full Bench said:
‘Accordingly, we find that ‘productivity’ as used in s.275 of the Act, and more generally within the Act, is directed to the conventional economic concept of the quantity of output relative to the quantity of inputs. Considerations of the price of inputs, including the cost of labour, raise separate considerations which relate to business competitiveness and employment costs.
Financial gains achieved by having the same labour input - the number of hours worked - produce the same output at less cost because of a reduced wage per hour is not productivity in this conventional sense. A reduction of unit labour costs, achieved under Schweppes’ shift proposal through less overtime and lower shift loadings, does not constitute productivity within that conventional meaning. Similarly, an increase in the value of output achieved through product differentiation and a higher average value of the quantity of output is not productivity in the conventional sense.’ 40
[43] Schweppes was considered and adopted in the 4 Yearly Review of Modern Awards – Penalty Rates decision in relation to the use of the term ‘productivity’ in s.134 of the Act. 41
[44] Under cl.2.12 of the RDNS agreement, rostering is weekly or fortnightly, and must be provided at least fourteen days before the commencement of the roster period. Under the RSL agreement, the rostering is only weekly as per cl.4.1.6(a). I accept the evidence of Ms Deidre McGill 42 and Mr Nicholas Warwick43 that the RSL agreement provides for less complex rostering requirements, which provide more flexibility to the new employer and affects productivity.
[45] Under cl.4.1.1(c), the spread of hours under the RSL agreement in community care is 6 am to 8 pm Monday to Sunday. Under the RDNS agreement, the spread is 6 am to 6 pm. 44 However, as the applicant submitted, this appears to be an issue of penalty rates being payable rather than productivity.
[46] Clause 2.2.1(o) of the RDNS agreement provides that Community Care Aides must be under the guidance and supervision of a nurse in the provision of nursing care to persons, and Ms McGill gave evidence that this means on occasion that care must be provided by both a Community Care Aide and a nurse, rather than the aide on his or her own, and that in any event there is an additional amount of supervision, while under the RSL agreement employees can ‘work within their scope of practice without restrictions’. She described this as a ‘duplication of assessment process’ which ‘contributes to Bolton Clarke not being comparatively competitive’. I accept her evidence and this extra supervision appears to hinder productivity.
[47] Clause 4.1.3 of the RSL agreement provides for broken shifts to be worked and one hour shifts by mutual agreement, unlike the RDNS agreement. 45 The lack of such provisions in the RDNS agreement are again an impediment to productivity on the evidence of Ms McGill46 and Mr Warwick47, which I accept. Ms McGill said that the one hour provision was used extensively.48 I do not agree with the applicant’s submissions that this is simply penalty rates and not productivity.49 There is obviously a cost issue and the cost would, on the evidence of Ms McGill, prevent some services being provided or the new employer would have to bear the cost.50 However, this issue is likely to be more complex than simply an issue of penalty rates because it goes to the organisation of work, with one employee being able to perform several one hour shifts for different clients instead of several employees, workers being able to perform split shifts, different rosters and the like.
[48] I therefore find that making the orders would have a negative impact on productivity, although only a limited range of agreement provisions may impact on productivity.
Significant economic disadvantage – s.319(3)(e)
[49] Mr Warwick gave evidence that the RDNS agreement provides significantly higher costs of more than $15 an hour than the RSL agreement. He said that ‘the cost to serve exceeded the revenue received for the Victoria At Home Support business for almost all services provided.’ 51
[50] The applicant vigorously contested this evidence and quite properly raised a number of issues of methodology, including its consistency with earlier evidence about the breakdown of what ‘cost to serve’ measures, 52 and the consistency of his evidence with that of Ms McGill and other issues.53 The applicant also submitted that the new employer has a large asset base and business,54 including a combined asset base of $1.2 billion, and annual revenue of $484 million. It was well able to cross subsidise.55 However, Mr Warwick’s evidence is also consistent to some degree with the agreed facts about differences in wage rates and conditions, which suggests that the RDNS agreement is significantly more expensive in wage rates and conditions.56 The totality of the evidence suggests that there would be a significant cost effect if the orders were granted, and it is difficult to dispute this given the agreed facts. The costs for the RDNS business appear to be significant overall, and there should not be an assumption that the overall business allows that to be ignored by cross subsidisation. There is no obligation on the new employer to cross subsidise. Ms McGill gave evidence that it had lost tenders at Western Hospital and Ambulance Victoria because of the costs of the RDNS agreement.57 Clearly higher costs are relevant and there is a significant economic disadvantage to the new employer.
Business synergy – s.319(3)(f)
[51] As the applicant submits, there are inconsistencies between the RDNS and RSL agreements. However, both would still operate to some extent if the orders are granted. If the orders are not granted, the RDNS agreement would gradually erode in its coverage so that the inconsistencies would lessen, although this could take some time as the applicant correctly submitted. 58 However, the new employer is currently applying both agreements, and Ms McGill gave evidence that it can continue to do so.59 This counts in favour of the application but to a limited extent only.
The public interest – s.319(3)(g)
[52] In O’Sullivan v Farrer 60, the High Court said:
‘Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (N.S.W.) v. Browning, per Dixon J.’ [footnotes omitted]
[53] The applicant refers to the objects of the Act, including the reference in s.3 of ‘maintaining appropriate industrial standards’, and the decision of Parks Victoria v The Australian Workers’ Union and others (Parks Victoria), where a Full Bench of the Commission said:
‘The public interest refers to matters that may affect the public as a whole such as the achievement or otherwise of the objects of the FW Act, employment levels, inflation and the maintenance of appropriate industrial standards.’ 61
[54] It says that a refusal to issue orders providing that the RDNS agreement apply to new employees performing transferring work not serve the object of maintaining appropriate industrial standards, and would undermine the object in s.390(a), which refers to protecting employees terms and conditions under enterprise agreements. However, as the new employer submitted, the RSL agreement would apply if the orders were not issued, and that also is an enterprise agreement and appropriate industrial standard, although the terms and conditions are less favourable to employees in rates and conditions than those in the RDNS agreement. The circumstances were different in the CSIRO Case.In that case the Commission decided to leave an enterprise agreement in place which had higher benefits than that sought by the employer. This decision does not mean that the current RSL agreement should not be left in place having regard to all the circumstances, and the factors discussed earlier.
[55] The new employer submitted that granting the orders would be unsustainable, and ‘would place current and future employment in jeopardy’, and referred to the evidence of Mr Warwick discussed earlier that costs of the RDNS agreement were higher than revenue. It said that the RDNS agreement cannot be an ‘appropriate industrial standard’ in those circumstances. It referred to the objects of the Act in s.3, which refer to economic issues such as employment levels, inflation and the maintenance of appropriate industrial standards. It submitted that the scheme of the Act is that the RSL agreement applies to new employees performing transferring work unless orders are issued under s.319.
[56] The applicant submitted that these submissions do not raise public interest considerations, but concerned ‘private interests’ outside the scope of the Act. It referred to Parks Victoria, in which the Commission said:
‘The statutory distinction between the interests of the employer and employees on the one hand (s.275(c)) and the public interest on the other (s.275(d)) leads us to conclude that the public interest is distinct from the interests of the parties, though the considerations may overlap. For example, matters which may be in the public interest may also be in the interests of one or more of the parties.’ 62
[57] In my view, both the RDNS and RSL agreements are appropriate industrial standards. They are approved enterprise agreements. The applicant raised an inconsistency between the RSL agreement which provides for one hour shifts, and the award which does not. The applicant specifically disavowed any attempt to claim that the statutory tests were not properly applied in approving the RSL agreement. 63 In any event, such a matter should be raised in a separate application if there are any grounds for so doing, rather than in a collateral attack in these proceedings.
[58] It would not be appropriate to ignore the submissions of the new employer on the effects on employment and similar matters as part of consideration of the public interest, given the objects of the Act which refer to such matters albeit in aggregate. I also note the object of this Part, s.309, which amongst other things refers to balancing matters including ‘the interests of employers in running their enterprises efficiently’. Being cost effective is part of efficiency. Even if the applicant is correct in claiming that these issues are in whole or in part ‘private interests’ and do not overlap with the public interest as contemplated in Schweppes, and that I should ignore possible deleterious effects on employment levels, I am not persuaded that it is in the public interest to grant the application. If the application is not granted then the RSL agreement will continue to apply to new employees in transferring work, and that agreement is an appropriate industrial standard, and the award will also apply. Employees are protected. I accept, and the new employer should too, that it is understandable that the applicant seeks to campaign for the RDNS agreement terms to continue. The loss of more beneficial provisions in a business is an obvious area of union concern, even if it is by operation of the Act in s.314 rather than employer decision. However, that does not necessarily mean that the application should be granted.
Conclusion
[59] Having regard to all the circumstances of the case, and taking into account all submissions and evidence, I refuse the application, and an order dismissing it is contained in PR600158.
[60] I also draw the attention of the parties again to the fact that they are required to commence discussions in the near future on a replacement to the RDNS agreement. This will require them to undertake thorough preparations if the discussions are to have any prospects of success, and they should commence those preparations immediately if they have not done so already. I have endeavoured to start these in part by asking the parties to prepare comparisons of the two agreements, which have been done, but nevertheless the parties have to prepare actual proposals, and potentially to consider fall back provisions. If a further conference would assist the parties this can be arranged.
DEPUTY PRESIDENT
Appearances:
P.Dean for the Applicant.
C.Laird for the Respondent.
Hearing details:
2018.
Melbourne:
February 6.
Final written submissions:
Applicant: 8 February 2018.
Respondent: 7 February 2018.
<PR600157>
1 [2017] FWCA 53.
2 [2016] FWCA 1260.
3 [2017] FWC 6792 at [14].
4 [2017] FWCA 53 at [6].
5 [2016] FWCA 1260 [83].
6 [2017] FWC 6792.
7 Exhibit Agreed 1.
8 Exhibit ANMF1 at [14].
9 Exhibit R1 at [21].
10 Ibid at [22].
11 Exhibit ANMF1 at [20].
12 Exhibit R1 at [37].
13 Ibid at [39].
14 Exhibit ANMF1 at [23]-[24].
15 Exhibit R1 at [43].
16 Ibid at [44].
17 Ibid at [45].
18 Exhibit ANMF1 at [27]-[28].
19 Exhibit R1 at [49].
20 Ibid at [53]-[54].
21 Ibid at [55].
22 Ibid at [56].
23 Exhibit ANMF1 at [32]-[33].
24 Exhibit R1 at [63].
25 Ibid at [65]-[66].
26 Exhibit ANMF1 at [38].
27 [2010] FWA 1171.
28 Exhibit ANMF1 at [39].
29 Ibid at [40].
30 Exhibit R1 at [74]-[75].
31 Ibid at [82].
32 Ibid at [83].
33 [2010] FWA 1171 at [101].
34 Exhibits Agreed 1 and 2.
35 Exhibit ANMF1 at [8]-[18].
36 [2017] FWC 6792 at [14].
37 Exhibit Agreed 1 and Transcript at PN253.
38 Fair Work Act 2009 (Cth) s.319(3)(b).
39 [2012] FWAFB 7858.
40 Ibid at [45]-[46].
41 [2017] FWCFB 1001 at [224]-[225].
42 Exhibit R2, 5 at [38].
43 Exhibit R3 at [19].
44 Ibid at [22].
45 Exhibit ANMF3, 5.
46 Exhibit R2, 5 at [38].
47 Exhibit R3 at [22(c)].
48 Transcript at PN462.
49 Transcript at PN136.
50 Transcript at PN463-464.
51 Exhibit R3 at [7]-[18].
52 Exhibit R3 at [7] and Transcript at PN533-538.
53 Transcript at PN550-564.
54 Exhibit ANMF 2, 17.
55 Transcript at PN671-674.
56 Exhibits Agreed 1 and 2.
57 Transcript at PN458-461.
58 Transcript at PN453.
59 Exhibit R2, 4 at [30].
60 [1989] HCA 61.
61 [2013] FWCFB 950 at [50].
62 Ibid at [51].
63 Transcript at PN772 and PN777-778.
Printed by authority of the Commonwealth Government Printer
1
8
0