Australian Nursing Home Foundation Limited T/A Australian Nursing Home Foundation

[2024] FWC 3006

[2024] FWC 3006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Nursing Home Foundation Limited T/A Australian Nursing Home Foundation

(AG2024/3721)

PRESBYTERIAN AGED CARE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 30 OCTOBER 2024

S.318 - Application for an order relating to instruments covering new employer and transferring employees – transfer orders made

1. The Australian Nursing Home Foundation Limited T/A Australian Nursing Home Foundation (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for an order that the Presbyterian Aged Care, NSWNMA and HSU NSW Enterprise Agreement 2023[1] (PAC Agreement) does not cover the Applicant and any employees who transfer their employment from Presbyterian Aged Care ABN 70 282 579 844 (PAC) to the Applicant (Transferring Employees). The Applicant will be the new employer of the relevant transferring employees.

1. The nominal expiry date of the PAC Agreement is 1 August 2025.

1. The Applicant also seeks an order that the enterprise agreement that currently covers and applies to its relevant existing employees, the ANHF, NSWNMA and HSU NSW Enterprise Agreement 2023[2] (New Agreement), does, and will, cover any PAC employees transferring their employment from PAC to the Applicant.  The New Agreement also has a nominal expiry date of 1 August 2025.

1. The information before me identifies that by 31 October 2024, the Applicant expects to enter into a transfer arrangement with PAC for the transfer of its employees operating in the aged care industry (Transfer Arrangement). Pursuant to the Transfer Arrangement, relevant employees of PAC who accept an offer of employment with the Applicant will be Transferring Employees from PAC (old employer) to the Applicant (new employer).

1. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the affidavit filed in support of its application, made by Zhe Liu dated 29 October 2024. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Zhe Liu and the submissions made in the Form F40 Application filed in this matter.  Specifically, I find that relevant Transferring Employees will not be disadvantaged overall (in their terms and conditions of employment between the PAC Agreement and the New Agreement) if the orders sought are made. Further, the PAC Agreement is likely to have a negative impact upon the productivity of the Applicant’s workplace, and there is a lack of business synergy between the PAC Agreement and the work performed Transferring Employees at the Applicant workplace/s. I consider that the orders sought by the Applicant are in the public interest to be made as they will allow all of the Applicant’s employees to all be employed on consistent terms and conditions, promoting a harmonious, cohesive and productive workplace. There is no indication that any Transferring Employees have objected to the orders sought by the Applicant.

1. The Health Services Union is an employee organisation covered under the PCA and the New Agreements.  It makes no objections to the orders sought by the Applicant being made.

1. The Australian Nursing and Midwifery Federation (ANMF) is an employee organisation covered under the PCA and the New Agreements.  It raised two concerns about employment contract issues associated with the transfer of business, but did not otherwise object to the orders sought by the Applicant being made.[3]  I accept that the Applicant’s response to the ANMF’s concerns either resolves same, or properly identifies such concerns as being matters not for relevant consideration or resolution as part of this application.[4]

1. Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I note that none of the criteria weigh against the making of the orders sought by the Applicant. I have thus determined to exercise my discretion to make the orders sought by the Applicant pursuant to s.318(1) of the Act. Orders in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

[1] [2024] FWCA 1435, 19 April 2024, Crawford C.

[2] [2024] FWCA 1993, 31 May 2024, Crawford C.

[3] See email to Chambers from Mr Lungaka Mbedla, Industrial Officer of the ANMF, 28 October 2024, 12:44pm.

[4] See email response from Ms Mandi Xu, Principal, Russell Kennedy (on behalf of the Applicant) to Chambers, 29 October 2024, 10:20am.

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