Australian Sport Anti-Doping Authority T/A ASADA
[2020] FWC 3831
•23 JULY 2020
| [2020] FWC 3831 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
ss.318 and 319 – Applications for orders relating to instruments covering new employer and transferring employees
Australian Sport Anti-Doping Authority T/A ASADA
(AG2020/1813)
Australian Capital Territory | |
DEPUTY PRESIDENT KOVACIC | CANBERRA, 23 JULY 2020 |
Application for orders relating to instruments covering new employer and transferring employees – orders made.
[1] This decision concerns an application made on 24 June 2020 pursuant to ss.318 and 319 of the Fair Work Act2009 (the Act) by the Australian Sport Anti-Doping Authority T/A ASADA (the Applicant) seeking orders:
• under s.318(1) of the Act that:
- the Australian Sports Commission Enterprise Agreement 2016-2019 (the ASC Agreement) 1does not and will not cover Sport Integrity Australia (SIA), or any employees of SIA who were formerly employed by the Australian Sports Commission (ASC – transferring employees), and
- the Australian Sports Anti-Doping Authority Enterprise Agreement 2017-2020 (the ASADA Agreement) 2will cover the transferring employees; and
• under s.319(1) of the Act that:
- the ASC Agreementdoes not and will not cover non-transferring employees engaged by SIA, and
- the ASADA Agreementwill cover non-transferring employees who perform, or who are likely to perform transferring work at SIA.
[2] By way of background, SIA was established on 1 July 2020 as a result of the enactment of the Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Act 2020 (Cth) (the SIA Act) which amended the Australian Sports Anti-Doping Authority Act 2006 (Cth) to establish SIA. SIA consolidates the functions of ASADA, the National Integrity of Sport Unit within the Department of Health and the sports integrity functions of Sport Australia within the ASC. SIA employs staff under the Public Service Act 1999 (Cth) (the PS Act) and based on material provided in support of the application was projected to have 316 employees as at 1 July 2020, comprised of 299 (including 227 casual) employees from the former ASADA, 14 employees from the Department of Health and three employees from the ASC.
[3] Item 7 of Schedule 4 of the SIA Act provides as follows:
“7 References to the CEO of the Australian Sports Anti-Doping Authority etc. in instruments
(1) This item applies to an instrument if:
a. the instrument was in force immediately before the commencement of this item; and
b. the instrument contains a reference to:
i. the Chief Executive Officer of the Australian Sports Anti-Doping Authority; or
ii. the Australian Sports Anti-Doping Authority.
(2) The instrument has effect, on and after that commencement, as if:
a. a reference in the instrument to the Chief Executive Officer of the Australian Sports Anti-Doping Authority were a reference to the Chief Executive Officer of Sport Integrity Australia; and
b. a reference in the instrument to the Australian Sports Anti-Doping Authority were a reference to Sport Integrity Australia.
(3) The rules may provide that sub item (2) does not apply in relation to a specified instrument or a specified reference.
(4) This item does not prevent the instrument from being amended or repealed after the commencement of this item.
(5) In this item:
instrument includes:
a. a contract, deed, undertaking, arrangement or agreement; and
b. a notice, authority, order or instruction; and
c. an instrument made under an Act or regulation.”
[4] The practical effect of the above provision of the SIA Act is that the ASADA Agreement applies to SIA employees other than the transferring employees.
[5] The Chief Executive Officer (CEO) of ASADA, Mr David Sharpe, was announced as the CEO of SIA on 2 May 2020.
[6] Attached to the application was inter alia a document setting out the grounds relied on in seeking the orders sought. 3
The statutory framework
[7] The relevant sections of the Act are ss.313, 314, 318 and 319 which provide as follows:
“313 Transferring employees and new employer covered by transferable instrument
(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:
(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and
(b) ...
(3) This section has effect subject to any FWC order under subsection 318(1).
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 employeeof 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).
…
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) …
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.
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) …
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;
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.
[8] Before turning to consider each of the matters specified in ss.318(3) and 319(3) of the Act, I note that the Applicant, as the likely new employer, has standing pursuant to s.318(2)(a) of the Act to make the application for the orders sought. As previously mentioned, SIA consolidates the functions of ASADA, the National Integrity of Sport Unit within the Department of Health and the sports integrity functions of Sport Australia within the ASC with ASADA providing all but 17 of SIA’s 316 employees on establishment.
The views of the new employer [ss.318(3)(a)(i) and 319(3)(a)(i]
[9] The Applicant stated that its preference was for all SIA employees to be covered by the same industrial instrument, i.e. the ASADA Agreement. The Applicant further stated that:
• having the three transferring employees covered by a different industrial instrument would cause an increased administrative burden due to the need to administer more than one industrial instrument, adding that SIA would be a small agency with limited capacity to cover additional administrative costs;
• it held concerns regarding the practical application of the ASC Agreement given the different employment framework under which the ASC operates – the ASC employs staff under its own enabling legislation, while SIA staff are employed under the Public Service Act 1999 (Cth) (the PS Act);
• should one of the positions being held by a transferring employee become vacant, the position would have to be advertised as subject to a different rate of pay and different conditions of employment to other SIA advertised positions; and
• having employees perform the same work covered by the same terms and conditions will be more harmonious to workplace culture.
The views of the employees who would be affected by the orders [ss.318(3)(a)(ii)]
[10] On 25 June 2020 Mr Bill Turner, the Head of the Sports Integrity Taskforce, Acting Sports Integrity Advisor and Assistant Secretary of the Department of Health’s National Integrity of Sport Unit, sent the following email to the three transferring employees:
“Further to the information provided via teleconference on the 25 May 2020 and email on the 26 May 2020 regarding the transition from Sports Australia to Sport Integrity Australia and an application to the Fair Work Commission for orders to transfer staff onto to the ASADA EA, I can advise that the application is now almost ready for submission.
The specific orders that we are seeking are as follows:
• That the Australian Sports Commission Enterprise Agreement 2016-2019 does not and will not cover the Australian Sports Anti-Doping Authority, or any employees of the Australian Sports Anti-Doping Authority who were formerly employed by the Australian Sports Commission (transferring employees); and
• The Australian Sports Anti-Doping Authority Enterprise Agreement 2017-2020 will cover the transferring employees.
• That the Australian Sports Anti-Doping Authority Enterprise Agreement 2017-2020 covers, or will cover, non-transferring employees engaged by Sport Integrity Australia to perform the transferring work.
Before we finalise the application we would be keen to hear your views or comments on the proposal, specifically your employment being covered by the provisions of ASADA EA.
Can you please provide you view including any concerns or issues you may have to … by Monday 22 June 2020? We will include your views in the application to Fair Work Commission as the Commission must consider the views of any affected employees when determining whether to make the orders requested.”
[11] The three transferring employees responses are set out below.
“ALl [sic] good from me”
and
“Thank you for your email, I appreciate the opportunity to provide comment. The briefing and material provided on 25 and 26 May were very comprehensive and did not raise any concern or issue for me. I understand that if the application to the Fair Work Commission is successful, upon my transition to Sport Integrity Australia my employment conditions will be covered by the ASADA Enterprise Agreement 2017-2020. I support the application to the Fair Work Commission.
In regards to salary, given my current salary is higher than the substantive position I hold within the Safeguarding Team at Sport Integrity Australia I did seek assurance from Kate that my current salary would be honoured while I continue to work within the Implementation Team. I believe this is the case and would be grateful for confirmation of this if possible.” (Underlining added)
and
“I have read through the comparison document and have no concerns in relation to the transfer to the ASADA EA.
I would appreciate confirmation that my current salary based on the ASC EA will be retained, noting the difference in the salary ranges between the two EAs?” (Underlining added)
[12] As can be seen from the above responses, all three transferring employees either support or have no concerns about being covered by the ASADA Agreement. This weighs in favour of making the orders sought. The salary issue raised by two of the transferring employees in the above emails is discussed further below.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment [ss.318(3)(b) and 319(3)(b)]
[13] The Applicant contended that, on balance, it was more beneficial for transferring employees to be moving to the ASADA Agreement.
[14] Attached to application was a table provided a detailed comparison of the ASC and ASADA Agreements. In short, the table indicates that the agreements differ in several respects but by and large are similar in many respects. For instance, the ASC Agreement provides for 20 days personal leave each year whereas the ASADA Agreement provides for 18 days personal leave each year. On the other hand, the ASADA Agreement provides a narrower span of hours (7am-7pm) than the ASC Agreement (6am-7pm).
[15] The key area of difference in terms and conditions of employment for the transferring employees concerns the issue of pay. This is clear from the following table provided by the Applicant.
Level ASC EA | Current salary set by determination under Section 41(2) of the ASC Act. | Final salary provided under ACS EA (AE417809) at NED | Relevant Salary rate in SIA (formerly ASADA) EA (AE427115) |
ASC 5 (APS6) | $103,073 | $101,959 | $102,012 |
ASC 6 (EL1) | $124,233 | $122,767 | $117,047 |
(EL2) | $159,681 | $157,100 | $146,504 |
[16] On 20 July 2020 in response to an inquiry from the Commission the SIA advised that on 1 July 2020 a determination was made under s.24(1) of the PS Act by the CEO of SIA preserving the existing salaries for the three transferring employees (i.e. the salaries specified in the column of the table head “Current salary … ASC Act”). A copy of that determination was provided to the Commission by the SIA.
[17] As to other terms and conditions of employment, while there is an element of swings and roundabouts involved in the comparison of the Agreements, overall the table does not indicate that the transferring employees would be disadvantaged by the orders in relation to their terms and conditions of employment.
The nominal expiry date of the agreement [ss.318(3)(c) and 319(3)(c)]
[18] The ASC Agreement passed it nominal expiry on 11 February 2019 while the ASADA Agreement has a nominal expiry date of 1 February 2021.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace [s.318(3)(d) and s.319(3)(d)]
[19] The Applicant stated that the transferable instrument would affect the workplace productivity of SIA, given the administrative burden involved in managing an additional industrial instrument and different terms and conditions of employment for the three transferring employees. The Applicant also contended that the burden associated with having to manage two sets of terms and conditions of employment was disproportionate to the number of transferring employees and the percentage of total SIA employees which they represent. Whilst the negative impact on productivity of these considerations is likely to be modest, it nevertheless weighs in favour of making the orders sought.
Any significant economic disadvantage to the new employer [ss.318(3)(e) and 319(3)(e)]
[20] The Applicant acknowledged that there would be no significant economic disadvantage for SIA should the ASC Agreement cover it, though there would be costs associated with the manual maintenance and reporting of salaries for the three transferring employees. I accept that in the absence of the orders sought this would be the case.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer [s.318(3)(f)]
[21] The Applicant submitted that while there was a level of commonality between the two Agreements, there was not significant business synergy in their operation. The Applicant reiterated that additional inconsistency between the Agreements was generated by the different employment frameworks that the ASC and ASADA operated under (see paragraph [9] above). As a result, there were provisions in the ASC Agreement which were not in the ASADA Agreement and which would not operate for transferring employees as they go to matters dealt with in the PS Act and subordinate legislation. Those differences in my view negatively impact on the degree of business synergy between the two agreements. This favours the making of the orders sought.
The public interest [ss.318(3)(g) and 319(3)(g)]
[22] The Applicant contended that the orders sought would support the development and encouragement of a harmonious workplace through a single set of terms and conditions of employment and would also enable efficiency and minimise the risk of non-compliance. The Applicant further contended that the latter outcome would be in the public interest as it reduces the need for public monies to be spent on ensuring compliance.
[23] While I note the Applicant’s contentions, I do not consider that the public interest is enlivened in this case in circumstances where the efficiencies associated with one set of terms and conditions are likely to be relatively minor.
Conclusion
[24] Taking into account each of the matters set out in ss.318(3) and 319(3), I am satisfied that the orders sought should be made.
[25] The orders (PR721173) will provide that:
• the ASC Agreementdoes not and will not cover SIA or any transferring employees;
• the ASADA Agreementwill cover the transferring employees;
• the ASC Agreementdoes not and will not cover non-transferring employees engaged by SIA; and
• the ASADA Agreementwill cover non-transferring employees who perform, or who are likely to perform transferring work at SIA.
[26] The orders will operate from the date they are made.
Printed by authority of the Commonwealth Government Printer
<AE417809 PR721172 >
1 AE417809
2 AE427115
3 Form F40 – Application for orders in relation to transfer of business at Attachment 3
0
0
0