Brisbane Waters Private Hospital Pty Ltd

[2021] FWC 5410

[2021] FWC 5410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Brisbane Waters Private Hospital Pty Ltd
(AG2021/6811)

Health and welfare services
COMMISSIONER JOHNS	SYDNEY, 2 SEPTEMBER 2021

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

[1] On 20 August 2021, Brisbane Waters Private Hospital Pty Ltd (the Applicant), made an application (the Application) pursuant to s.319 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to make an order relating to instruments covering new employer and non-transferring employees. The Applicant seeks an Order in the following terms:

“The Healthe Care (NSW Private Hospitals) Health Professionals and Support Services Enterprise Agreement 2020 (the Agreement) that covers, or is likely to cover, Brisbane Waters Private Hospital Pty Ltd because of a provision of Part 2-8 of the Act, will cover all non-transferring employees of Brisbane Waters Private Hospital Pty Ltd who perform, or are likely to perform, transferring work for Brisbane Waters Private Hospital Pty Ltd”

[2] The Application was lodged by email attaching a Form F40 Application form. The Health Services Union of Australia (the Union), who is covered by the Agreement, was copied in by way of service.

[3] No submissions in opposition to the Application were received. I have made my determination on the basis of all the written materials, whether mentioned in this decision or not.

Relevant Legislation

[4] Section 313 provides:

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

....

(3) This section has effect subject to any FWC order under subsection 318(1).

[5] Section 319 provides:

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.

Consideration

[6] In determining the matter, the Commission must take into account s.319(3).

Views of the new employer – s.319(3)(a)(i)

[7] The new employer is the Applicant and is supportive of the Orders being made. This weighs in favour of the Orders being made.

Views of the employees who would be affected by the Order – s.319(3)(a)(ii)

[8] The Applicant currently does not have any employees who would be affected by the Order. This is a neutral factor.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.319(3)(b)

[9] The Applicant submits that the wages and terms and conditions of the Enterprise Agreement are more beneficial, overall, to the new employees than the Health Professionals and Support Services Award 2020 (the Award).

[10] In their Application the Applicant provided spreadsheets comparing the wage rates and conditions under the Agreement and theAward and submit than an analysis of the documents highlights that the Agreement is, overall, more beneficial than the Award.

The nominal expiry date of the agreement – s.319(3)(c)

[11] The Agreement has a nominal expiry date of 1 September 2023. The Applicant submitted that negotiations for the Agreement with the Union resulted in fit-for-purpose terms and conditions being agreed upon between the parties.

Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.319(3)(d)

[12] The Applicant submits that if the Orders are not granted, there will be a negative impact to the Applicant’s productivity as applying varying conditions to employees who perform identical work will not promote a cohesive, equitable and inclusive workplace culture, but rather has the potential to result in division and negatively impact morale. As such, I find that there is a productivity benefit in making the Orders sought and that this weighs in favour of the Orders being made.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.319(3)(e)

[13] The Applicant submits that it would be burdened by the economic disadvantage flowing from the application of separate industrial instruments. This weighs in favour of the Orders being made.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.319(3)(f)

[14] The Applicant submits that there is little business synergy between the Agreement and the Award, as they provide different minimum employment conditions. As such, I am satisfied that it would negatively affect the business synergy of the Applicant if it was required to apply the award to the non-transferring employees. This weighs in favour of the Orders being made.

The public interest – s.319(3)(g)

[15] Having considered the commercial benefits to the Applicant, the support of the Union and the fact that there will be no disadvantage to the non-transferring employees, I consider that it is in the public interest for the Orders to be made.

Conclusion

[16] It follows that the Application should be granted. The Orders sought by the Applicant have been issued PR733375 concurrently with this decision.

COMMISSIONER

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