Blue Cross Community Care Services Group Pty Ltd

[2012] FWA 6963

[2012] FWA 6963

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Blue Cross Community Care Services Group Pty Ltd
(AG2012/5672)

COMMISSIONER JONES MELBOURNE, 16 AUGUST 2012

Transfer of Business.

Introduction

[1] This decision concerns an application made by Blue Cross Community Care Services Group Pty Ltd (‘the Applicant’) for Orders under section 318 of the Fair Work Act 2009 (‘the Act’) which relates to instruments covering a new employer and transferring employees in the context of transfer of business.

[2] The Applicant seeks Orders that the Premier (Highgrove) Pty Ltd t/as Blue Cross Highgrove Supported Residential Service Employee Enterprise Agreement 2009 (‘Premier Highgrove Agreement’) not cover the Applicant and transferring employees and, that the transferring employees instead be covered by the Blue Cross Community and Residential Care Services Group, ANF and HSU Enterprise Agreement 2009 (‘Blue Cross Agreement’).

[3] The Orders sought are in relation to the transferring employees specified in Attachment A to this decision.

Background

[4] On 24 February 2012, Premier (Highgrove) Pty Ltd (‘Highgrove’) closed its Blue Cross Highgrove Supported Residential Service for refurbishment. The facility is to be reopened in or around March 2013 as an aged care residence. The Orders sought are in relation to employees who have been redeployed from Highgrove to work in aged care facilities owned and managed by the Applicant. Highgrove and the Applicant are related bodies corporate.

The relevant legislation

[5] Sections 317 and 318 of the Act relevantly provide as follows:

317 FWA may make orders in relation to a transfer of business

This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA 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) FWA 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 FWA must take into account

(3) In deciding whether to make the order, FWA 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.

Consideration

[6] The matters that I am required to take into account in issuing an Order in the terms sought are specified in s. 318(3) of the Act, as set out above. I have considered each of the matters specified in the subsection 318(3).

[7] I have had regard to the views of the Applicant (the new employer) and the provision of documents signed by each of the transferring employees consenting to the orders sought by the Applicant.

[8] I am satisfied, having regard to the material provided by the Applicant, that the Blue Cross Agreement provides more beneficial terms and conditions of employment than the Premier Highgrove Agreement. I am further satisfied, having regard to the material provided by the Applicant, that the Premier Highgrove Agreement may have a negative impact on productivity of the Applicant’s workplace and that, whilst there is a degree of business synergy between that Agreement and the Blue Cross Agreement, the Blue Cross Agreement is an instrument more suited to the Applicant’s aged care facilities in which the transferrable employees now work. There is no evidence that the Applicant would suffer economic disadvantage as a result of the Premier Highgrove Agreement.

[9] I do not consider the granting of the Orders in the terms sought would be against the public interest.

Conclusion

[10] For the reasons above, I find that the employees specified in Attachment A should not be covered by the Premier Highgrove Agreement and that they should be covered by the Blue Cross Agreement. An Order to this effect will be issued today.

COMMISSIONER

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ATTACHMENT A

NAME	POSITION
• BONNICI, Gracie		(Food Service Assistant);
• FROST, Lynette		(Lifestyle Coordinator);
• GILL, Jaspreet		(Personal Care Attendant);
• KAUR, Gurdeep		(Personal Care Attendant);
• KEE, Shannon		(Relief Chef Manager);
• LEDOUX, Thierry		(Food Services Assistant, Cook);
• PANDEY KARKI, Najani		(Personal Care Attendant);
• ROBINSON, Mandy		(Personal Care Attendant);
• SCARFF, Cheryl		(Personal Care Attendant);
• SINGH, Karamjit		(Cleaning and Laundry Assistant); and
• TALATAU, Charlotte		(Personal Care Attendant).