Central Australian Aboriginal Congress Aboriginal Corporation
[2023] FWC 54
•2 February 2023
| [2023] FWC 54 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Central Australian Aboriginal Congress Aboriginal Corporation
(AG2022/5163)
NORTHERN TERRITORY PUBLIC SECTOR 2021 – 2015 ENTERPRISE AGREEMENT
| Northern Territory | |
| COMMISSIONER RIORDAN | SYDNEY, 2 February 2023 |
Application for an Order relating to instruments covering new employer and transferring employees
The Central Australian Aboriginal Congress Aboriginal Corporation (the Applicant) has applied to the Fair Work Commission (the Commission) for an Order in relation to transfer of business. The Applicant seeks to transfer employees from Commissioner for Public Employment in the Northern Territory to employment with the Central Australian Aboriginal Congress Aboriginal Corporation.
The employees to be transferred from employment by the Commissioner for Public Employment in the Northern Territory are presently covered the Northern Territory Public Sector 2021 – 2025 Enterprise Agreement (the Public Sector Agreement). The Applicant applies for the following order under s.318(1) of the Act (the proposed order):
“That a transferable instrument, Northern Territory Public Sector 2021 - 2025 Enterprise Agreement that would, or would be likely to, cover the Applicant’s organisation and a transferring employee because of paragraph 313(1)(a) of the Act does not, or will not, cover the Applicant’s organisation and the transferring employee; and
The Central Australian Aboriginal Congress Enterprise Agreement 2022-2025 (Congress Agreement), will cover the transferring employees and the Applicant’s organisation.”
The Applicant filed submissions in support of the application. The application was accompanied by a statutory declaration of Mr David Busuttil, General Manager, Business Services.
Legislation
Section 318 of the Act provides:
“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.”
Consideration
Preliminary matters
The Applicant submitted that it provides a comprehensive, holistic and culturally-appropriate primary health care service to Aboriginal people living in and nearby Alice Springs, including several remote communities.
The Applicant submitted that six transitioning employees will be affected by the order, being three drivers and three administration staff.
The views of the new employer and the employees who would be affected by the order
Mr David Busuttil stated that a vote was held from 16 December 2022 to 22 December 2022, allowing the transitioning staff to advise which instrument they would prefer to determine their terms and conditions of employment. Mr Busuttil stated that of the 6 potential voters, 3 cast a vote and all 3 chose to be covered by the Congress Agreement.
This weighs in favour of making the Order sought.
Whether any employees would be disadvantaged by the order
The Applicant submitted that the affected employees will be better off overall regarding the terms and conditions of their employment. The Applicant provided an ‘Instrument Comparison’ document, which it submitted demonstrates the superior conditions of the proposed agreement.
The Commission’s Agreement Team undertook a Better Off Overall Test (BOOT) assessment of the Congress Agreement as compared against the Public Sector Agreement and relevant Modern Award, which I have reviewed. The only disadvantage identified related to pay rates for trainee and apprentices. This was put to the Applicant, who provided reply submissions that no trainees or apprentices are employed or likely to be employed. I have accepted these submissions.
I accept the Agreement Team’s assessment that as to any other disadvantages, the transitioning employees will be compensated by the pay increases under the Congress Agreement and remain better off overall.
These matters weigh in favour of making the Order sought.
The nominal expiry date of the agreement
The nominal expiry of the Public Sector Agreement is 10 August 2025. This is a neutral factor.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant submitted that the transferable instrument would have a negative impact on the productivity of its workplace. The Applicant submitted that, due to having a small cohort of employees, operating under different terms and conditions to the rest of the organization would cause significant administrative issues for the following reasons:
“• Payroll systems and processes will require redesign or regular workarounds to contemplate many differences in pay and entitlements.
· Managers will be required to consider the differences in leave entitlements and conditions for individual employees. This makes planning for service provision highly problematic.”
I have accepted these submissions and find that they weigh in favour of making the Order sought.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
The Applicant submitted that its organisation would incur additional ongoing administrative costs to adjust payroll and rostering systems to contemplate a small cohort of employees with different pay and conditions to the rest of the organisation.
I have accepted these submissions and find that they weigh in favour of making the Order sought.
The degree of business synergy between the transferable instrument and any workplace instrument that covers the new employer
The Applicant submitted that while both agreements cover similar areas, there are particular areas of the transferable agreement that do not consider the cultural aspects of a community controlled Aboriginal organisation.
I have accepted these submissions and find that they weigh in favour of making the Order sought.
The public interest
The Applicant submitted that as an organisation working across diverse Aboriginal communities in remote Central Australia, it is important that the pay and conditions of its workers are equitable across its remote clinics to ensure that communities receive an appropriate standard of service. The Applicant submitted that the inferior conditions of the transferable instrument will not achieve the measure of equity required.
I have accepted these submissions and find that they weigh in favour of making the Order sought.
Conclusion
Having considered the matters required by s.318 of the Act, I am satisfied and find that the Order sought should be made. An Order will be issued with this Decision.
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