Community Wheels Incorporated T/A Community Wheels

[2021] FWC 1638

[2021] FWC 1638

FAIR WORK COMMISSION

DECISION

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

Community Wheels Incorporated T/A Community Wheels
(AG2020/4081)

Aged care industry
COMMISSIONER JOHNS	SYDNEY, 6 APRIL 2021

Section 318 – Application for an order relating to instruments covering a new employer and transferring employees.

[1] On 22 December 2020, Corey Poulsen the Finance Officer for Community Wheels Incorporated (Community Wheels/Applicant) lodged a Form F40 application for orders in relation to a transfer of employees pursuant to s.318 and s.319 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The circumstances in which the application is made are as follows:

a) On 3 December 2018 Community Wheels Incorporated (Community Wheels/ Applicant) took over the operation of Auburn Community Transport for and on behalf of Transport NSW.

b) This was previously operated by BaptistCare NSW & ACT (BaptistCare).

c) A transfer of business occurred including the transfer of assets owned by BaptistCare and included the transfer of four employees that were employed as drivers by Auburn Community Transport Service.

d) The drivers (Affected Employees) are covered by a transferable instrument, the BaptistCare NSW & ACT Aged Care Enterprise Agreement 2017 (Transferring Agreement).

e) The Transferring Agreement nominally expired on 20 November 2020 and the last pay increase was made on 1 December 2019.

f) Community Wheels currently does not have an enterprise agreement in place and existing employees are covered by the Social, Community, Home Care and Disability Services Industry Award 2010 and the Passenger Vehicle Transportation Award 2010.

g) Community Wheels pays its drivers under the SCHADS Award as SACS Employee Level 2, current total ERO rate $28.42 to $31.00 per hour. This represents between 16%-23% above that currently paid to the transferred employees under the Transferring Agreement.

h) The Affected Employees have requested that they no longer be covered by the Transferring Agreement and would like to be covered under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).

i) The Applicant contends that Affected Employees are aware that they will forego certain entitlements under the Transferring Agreement as they are not available under the SCHADS Award. The Applicant supports this request from the Affected Employees.

j) Community wheels also outlined that the termination of the Transferring Agreement will allow for consistency in the application of employment provisions for all drivers employed by the business and ensure that the drivers are remunerated equally.

[3] On 6 January 2021, I issued directions that outlined:

“[1] (a) By no later than 4:00pm on Wednesday, 3 February 2021, the Applicant must serve a copy of these directions, the Form F40 application and accompanying documents on any affected employee and any relevant employee organisation.

(b) By no later than 4:00pm on Thursday, 4 February 2021, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with [1](a).

(c) By no later than 4:00 pm on Tuesday, 9 February 2021, the Applicant must file in the Commission and serve on any effected employee and any relevant employee organisation an outline of argument, statements of evidence and other documentary materials in support of its application.

(d) By no later than 4:00pm on Tuesday, 16 February 2021, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing [email protected]) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application.

(e) By no later than 4:00 pm on Tuesday, 23 February 2021, the Applicant must file in the Commission and serve on any affected employee or any relevant employee organisation its materials in reply.

[2] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for hearing at 10:00 am (AEDT) on Thursday, 25 February 2021, via video-link.” (FWC Directions)

[4] On 2 February 2021, in accordance with direction [1](b), the Applicant provided a signed copy of the Statutory Declaration of Mr Corey Poulsen, Finance Officer. Mr Corey Poulsen set out the steps he had taken to comply with the FWC Directions and confirmed compliance of direction [1](a) on 4 January 2021.

[5] On 4 February 2021, the Applicant’s representative, Mr Alan Bull of Australian Federation of Employers and Industries, in accordance with direction [1](c) filed further material in support of the application.

[6] On 17 February 2021, my chambers wrote to the Applicant advising that Mr Corey Poulsen’s Statutory Declaration referenced the wrong matter number and did not outline that the relevant documents were served on the relevant employee organisation in line with [1](a) of the FWC Directions. As a result, on 18 February 2021 amended directions reprograming the matter were issued by my Chambers that outlined:

“[1] (a) By no later than 4:00pm on Friday 19 February 2021, the Applicant must serve a copy of these directions, the Form F40 application and accompanying documents on any affected employee and any relevant employee organisation.

(b) By no later than 4:00pm on Monday 22 February 2021, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with [1](a).

(c) By no later than 4:00 pm on Monday 22 February 2021, the Applicant must file in the Commission and serve on any effected employee and any relevant employee organisation an outline of argument, statements of evidence and other documentary materials in support of its application.

(d) By no later than 4:00pm on Monday 1 March 2021, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing [email protected]) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application.

(e) By no later than 4:00 pm on Thursday 4 March 2021, the Applicant must file in the Commission and serve on any affected employee or any relevant employee organisation its materials in reply.

[2] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for hearing at 10:00 am (AEDT) on Thursday, 25 February 2021, via video-link.”

(FWC Amended Directions)

[7] On 18 February 2021, the Applicant served the application documents and the FWC Amended Directions to the relevant employee organisations. Four statutory declarations from the Affected Employees were filed with the application on 22 December 2020.

[8] The Applicant filed an amended Statutory Declaration from Mr Corey Poulsen on 22 February 2021.

[9] On 25 February 2021 and 1 March 2021 respectively, the New South Wales Nurses and Midwives’ Association and the Health Services Union advised they did not oppose the application.

[10] To date, no submissions in opposition to the order sought have been received. As a result, the hearing scheduled for 10 March 2021 was vacated.

[11] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 and s.319 of the FW Act have been met and an order in the terms sought should be made.

[12] An order [PR728100] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR728099>