Bupa Medical Services Pty Ltd

[2015] FWC 6139

[2015] FWC 6139

FAIR WORK COMMISSION

DECISION

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

Bupa Medical Services Pty Ltd
(AG2015/4572)

Banking finance and insurance industry
COMMISSIONER LEE	MELBOURNE, 23 OCTOBER 2015

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

[1] An application has been made by Bupa Medical Services Pty Ltd (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to section 318 of the Fair Work Act 2009 (the Act).

[2] The application seeks an order that the Bupa Australia Enterprise Agreement 2014 1 will not cover one transferring employee, Mr Mark North-Coombes.

[3] The application consisted of Form F40 - Application for Orders in Relation to Transfer of Business. A copy of the application was served on the Finance Sector Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union, unions covered by the instrument.

[4] I listed the matter for Mention by Telephone on 25 August 2015. I directed the Applicant to provide a copy of the notice of listing to the employee affected and the Applicant confirmed in writing it had done so. Prior to the Mention, the Applicant provided two witness statements of Mark North-Coombes and Bishop Grbic. The Applicant advised that the affected employee did not intend to attend the Mention.

[5] At the Mention, Mr C Cook represented the Applicant, Mr R Lowrey appeared from the Finance Sector Union of Australia and Mr J Nucifora appeared from the Australian Municipal, Administrative, Clerical and Services Union. The unions advised that they did not object to the application.

[6] The transferring employee did not attend the mention.

Legislation

“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.”

Background

[7] Mr North-Coombes is employed by Bupa Australia Pty Limited as a Resource Planning Analyst, working for a health insurance business operated by that company.

[8] Mr North-Coombes has been offered a Resource Planning Analyst role with the Applicant. The Applicant is a related body coporate of Bupa Australia Pty Ltd.

[9] Mr North-Coombes is currently covered by the Bupa Australia Enterprise Agreement 2014. The Applicant asserts that this is an instrument primarily designed to apply within the health insurance business operated by Bupa Australia Pty Ltd.

[10] The Applicant asserts that it is likely that the Bupa Australia Enterprise Agreement 2014 would transfer to the new employment of the Applicant pursuant to s.313(1) of the Fair Work Act 2009 (the Act).

[11] The Applicant submits that it, and Mr Coombes, do not wish the instrument to transfer. A witness statement signed by Mr Coombes was submitted and supported this view.

Transferrable instrument

[12] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of section 311(1) of the Act.

[13] Section 312 of the Act details instruments that may transfer:

“312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

[14] The Bupa Australia Enterprise Agreement 2014 was approved by the Fair Work Commission on 21 March 2014 and pursuant to section 312(1) of the Act is a transferrable instrument.

Who may apply for an order

[15] The application has been made by the new employer (the Applicant). The requirements of section 318(2) have been met.

Matters the Fair Work Commission must take into account (s.318(3))

Section 318(3)(a) - the views of the new employer and the employees who would be affected by the order

[16] The new employer is the Applicant for this order and it supports the making of the order.

[17] The transferring employee who will be affected by the order if granted, Mr North-Coombes, provided a witness statement supporting the application made.
[18] As outlined above, the transferring employee was provided with an opportunity to be heard in relation to this application. Mr North-Coombes did not wish to attend the proceedings.

[19] As detailed above, the Finance Sector Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union advised that they did not seek to contest this application.

Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[20] The Applicant submits that Mr North-Coombes will not, on an overall basis, be disadvantaged in relation to his terms and conditions of employment if the Commission makes the proposed order.

[21] Mr North-Coombes believes transferring will increase his career prospects and that as he is currently working on secondment with the Applicant, he is aware of the terms and conditions of the Applicant.

[22] Having considered all of the material before me, I am satisfied that the transferring employee will not be disadvantaged by an order in relation to their terms and conditions of employment.

Section 318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement

[23] The nominal expiry date for the Bupa Australia Enterprise Agreement 2014 is 24 March 2016.

[24] Should an order be made, the affected employee would be covered by the Health Professionals and Support Services Award 2010.

[25] This is not of great significance and is a neutral factor.

Section 318(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[26] The Applicant submits that applying the Bupa Australia Enterprise Agreement 2014 to the transferring employee would be administratively burdensome on the Applicant’s Payroll and Human Resources Departments and would lead to inefficiencies and additional costs.

[27] The Applicant further submitted that having employees on two different arrangements may lead to dissatisfaction and confusion among employees who may be required to undertake similar, if not the same, duties side by side.

Section 318 (e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

[28] No submissions were made regarding the new employer incurring significant economic disadvantage.

Section 318 (f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

[29] The Applicant submitted that there is a minimal degree of business synergy between the Bupa Australia Enterprise Agreement 2014 and the Health Professionals and Support Services Award 2010

Section 318 (g) the public interest

[30] The Applicant submitted that there were no public interest reasons not to make the order.

Conclusion

[31] It is apparent that the circumstances relevant to most matters weigh towards the grating of the application sought, while some are a neutral consideration. Taking into account each of the matters set out in section 318(3) of the Act, I am satisfied that the order as sought should be granted.

[32] An Order [PR573269] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

C Cook, for the Applicant

R Lowry for the Finance Sector Union of Australia

J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union

Hearing details:

2015

Melbourne (by Telephone):

August 27

 1   AE407366

Printed by authority of the Commonwealth Government Printer

<Price code C, AE407366  PR571577 >