BUPA Care Services Pty Limited

[2015] FWC 3988

[2015] FWC 3988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees

BUPA Care Services Pty Limited
(AG2015/2848)

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JUNE 2015

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

[1] This is an application, filed by BUPA Care Services Pty Limited (the ‘applicant’), pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’) that the Bupa Australia Enterprise Agreement 2014 [AE407366] will not cover or apply to the employment by the applicant of a transferring employee, Ms Elisabeth Anderson. The effect of this order is that Ms Anderson will be covered by the Aged Care Award 2010 [MA000018] (the ‘Award’). Relevantly, the Finance Sector Union of Australia (FSU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) (collectively, the ‘Unions’) are covered by the Agreement.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

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.

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) 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 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.’

[3] The application was accompanied by statutory declarations of Mr D Payne, People Director of the applicant and Ms E Anderson, the transferring employee. Mr Payne explained that Ms Anderson is currently employed by Bupa Australia Pty Limited, which is a related body corporate of the applicant, as an Internal Communications Advisor in relation to that entity’s health insurance business. The applicant had made an offer to Ms Anderson of a position as an Internal Communications Advisor in its aged care business. Mr Payne did not believe that Ms Anderson would be disadvantaged as her base salary package would increase by approximately 10%. He said further that it would administratively burdensome for the applicant’s Payroll and People departments if the applicant was covered by the Agreement and that it may cause confusion in the workforce. Ms Anderson confirmed that she did not want the Agreement to apply to her future employment with the applicant. She was comfortable with the workplace and believed that the change would benefit her career.

[4] At a hearing of the application on 15 June 2015, Mr C Cook appeared with Mr C Best for the applicant and Mr R Lowrey appeared for the FSU. The ASU did not appear, but submitted in correspondence to my Chambers, that it did oppose the application. Mr Cook explained that it was proposed that the terms and conditions of Ms Anderson’s employment with the applicant would be set out in a contract of employment underpinned by the Award. Mr Lowrey said that the FSU did not oppose the application.

[5] Having considered the material filed by the applicant and the submissions of the parties, I intend to make the orders sought by the applicant. In doing so, I have taken all of the matters in ss 318(3) of the Act into account; in particular, the views of the applicant, the Unions and Ms Anderson. I am satisfied that there is no disadvantage to the employee and that there would be a negative impact on the productivity of the applicant’s workplace, should the orders not be granted. For the sake of completeness, I am satisfied that granting the orders would not be against the public interest.

[6] Orders giving effect to my findings will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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<Price code A, AE407366  PR568320 >