Bupa Wellness Pty Ltd

[2016] FWC 2268

[2016] FWC 2268

FAIR WORK COMMISSION

DECISION

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

Bupa Wellness Pty Ltd
(AG2016/2625)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 APRIL 2016

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

[1] Bupa Wellness Pty Ltd has applied for an order under s.318 of the Fair Work Act 2009 (Cth) (the Act) that the Bupa Australia Enterprise Agreement 2014 (AE 407366)will not cover Ms Roslyn D’Angelo.

[2] The Application arises because Ms D’Angelo, who is currently employed by Bupa Australia Pty Limited as a Dietician and is covered by the Agreement, has been offered the role of Dietician Team Leader with Bupa Wellness.

[3] Bupa Wellness asserts that it is likely that the Agreement would transfer to Bupa Wellness in accordance with s.313(1) of the Act if Ms D’Angelo was to transfer to it. Bupa Wellness does not wish the Agreement to cover it and neither does Ms D’Angelo.

[4] The Application comprises a Form F40 – Application for orders in relation to transfer of business and statutory declarations by Ms D’Angelo and Mr Jonathan Morgan, (Acting) People Director of Bupa Wellness.

[5] The terms of the order sought under s.318 of the Act provide that the Agreement will not cover Ms D’Angelo if she ceases employment with Bupa Australia Pty Limited and commences with Bupa Wellness within 3 months of the cessation.

[6] The Application was served on the Finance Sector Union and Australian Services Union. Both unions are parties to the Agreement.

[7] I caused correspondence to be sent to Bupa Wellness, the Finance Sector Union, the Australian Services Union and Ms D’Angelo stating my proposal to deal with the Application on the papers, based on the material filed. I requested confirmation of their consent to this course of action. In the event consent was not forthcoming, my intention was to convene a telephone mention.

[8] Bupa Wellness, Ms D’Angelo indicated their consent to the Application being dealt with on the papers, the Finance Sector Union advised in writing that it consents to what is proposed and the Australian Services Union advised in writing that it does not oppose the Application.

The relevant legislation

[9] Part 2-8 of the Act describes when a transfer of business occurs and s.312(1) of the Act provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one employer to another employer.

[10] Section 311(1) contains the definition of transfer of business:

“(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).”

[11] Sections 317 and 318 of the Act relevantly provide:

“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

(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.”

Transferable Instrument

[12] The Agreement was approved by the Commission on 21 March 2014 and is a transferable instrument pursuant to s.312 (1) of the Act.

[13] Ms D’Angelo is currently employed by Bupa Australia Pty Limited as a Dietician. She has been offered the role of Dietician Team leader with Bupa Wellness from 29 April 2016. On the material before me, it is likely there will be a transfer of business within the meaning of s.311(1) of the Act.

Who may apply for an order

[14] The Application has been made by Bupa Wellness, a person who is likely to be the new employer. This meets the requirements of s.318(2) of the Act.

Matters that FWC must take into account

Section 318(3)(a) the views of the new employer or a person who is likely to be the new employer and the employees who would be affected by the order

[15] As mentioned, Bupa Wellness, the Applicant, is a person who is likely to be the new employer and it supports the making of the orders sought.

[16] Ms D’Angelo, the transferring employee who will be affected by the order if granted, provided a statutory declaration supporting the Application. She also indicated her consent to the Application being dealt with on the papers.

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

[17] Through the statutory declaration of Mr Morgan, Bupa Wellness has submitted that Ms D’Angelo will not, on the whole, be disadvantaged by the order sought in the Application in relation to her terms and conditions of employment.

[18] In her statutory declaration, Ms D’Angelo declares that she will be no worse off financially after the transfer and that she will in fact be slightly better off in her new role. She has also declared that she does not believe the Agreement provides any benefits for which she will not be compensated in her role at Bupa Wellness. Further, she declares that her transfer to Bupa Wellness will increase her career prospects through her having more autonomy, leadership and discretion and the opportunity to build her knowledge and skills in a new area.

[19] Having considered all the material before me, I am satisfied that Ms D’Angelo will not be disadvantaged by an order in relation to her terms and conditions of employment.

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

[20] The nominal expiry date for the Agreement was 24 March 2016. Should an order be made, Ms D’Angelo would be covered by the Health Professionals and Support Services Award 2010.

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

Section 318(3)(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[22] Bupa Wellness submits that applying the Agreement to Ms D’Angelo would be administratively burdensome on its Payroll and People Departments and would lead to inefficiencies and additional costs because the Agreement contains different terms and conditions to those in place within its workplace. It also submits that the complexity the Agreement would introduce could lead to an inadvertent breach of it.

[23] Bupa Wellness also submits 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 while receiving different entitlements and that this may affect morale and productivity.

Section 318(3)(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[24] No submissions were made regarding Bupa Wellness incurring significant economic disadvantage.

Section 318(3)(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[25] Bupa Wellness submitted there is a minimal degree of business synergy between the Agreement and the workplace instrument that already covers it, the Health Professionals and Support Services Award 2010. It submitted that the Agreement is primarily designed to cater for employees in the health insurance industry while the Award is designed for employees working as health professionals and related administrative/support functions, consistent with the type of work Ms D’Angelo will be performing as a Dietician Team Leader.

Section 318(3)(g) the public interest

[26] Bupa Wellness submitted there are no public interest reasons not to make the order.

Conclusion

[27] Having considered each of the matters set out in s.318(3) of the Act, I am satisfied that most matters weigh towards the granting of the Application, with the balance being neutral considerations. I am therefore satisfied the order sought should be granted.

[28] An Order [PR578935] will be issued to this effect.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578934>