Douglass Hanly Moir Pathology Pty Ltd T/A Douglass Hanly Moir
[2023] FWC 1236
•1 JUNE 2023
| [2023] FWC 1236 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Douglass Hanly Moir Pathology Pty Ltd T/A Douglass Hanly Moir
(AG2023/1336)
| Health and welfare services | |
| COMMISSIONER JOHNS | MELBOURNE, 1 JUNE 2023 |
Application for orders in relation to transfer of business – application granted.
Background
This is an application pursuant to s.318 of the Fair Work Act 2009 (FWAct) made by Douglass Hanly Moir Pathology Pty Ltd T/A Douglass Hanly Moir (Applicant) seeking orders from the Fair Work Commission (Commission) as follows:
“1. Pursuant to s. 318(1)(a) of the Fair Work Act 2009 (Cth), the Commission orders that the Sullivan Nicolaides Pathology Collective Workplace Agreement No.4 does not, and will not, cover Ms Stephanie-Lynn McKay-Gillies in relation to her employment with Douglass Hanly Moir Pathology Pty Ltd.
2. Pursuant to s. 318(4) of the Fair Work Act 2009 (Cth), order 1 comes into effect at the time Ms McKay-Gillies commences employment with Douglass Hanly Moir Pathology Pty Ltd.”
The Applicant and Sullivan Nicolaides Pty Ltd (SNP) are both constitutional corporations. Ms Stephanie-Lynn McKay-Gillies is currently employed by SNP.
The Applicant submitted that Ms McKay-Gillies sought a role with the Applicant in its Sydney office for personal reasons. However, the Applicant submitted that the offer of employment is conditional upon the above orders being made.
The application was supported by a statement of Ms Karen Wyborn, the Applicant’s Human Resources Officer, dated 9 May 2023. The application was also supported by a statement of Ms McKay-Gillies, dated 5 May 2023.
On 10 May 2023, I issued Directions in furtherance of the matter.
On 12 May 2023, the Applicant provided a statutory declaration confirming a copy of my Directions, the Form F40 application and its accompanying documents was served on any affected employee and any relevant employee organisation.
On 23 May 2023, the Applicant provided an outline of submissions.
There were no submissions received in opposition to the orders sought. Accordingly, the application was decided on the papers.
Legislative framework
Section 318 of the FW Act sets out the circumstances in which an Order may be made by the Commission:
“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) 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
The Commission will now consider each of the matters it is required to consider under s.318(3) of the FW Act.
s.318(3)(a)(i) - the views of the new employer
The Applicant submitted that it seeks the orders to facilitate the employment of Ms McKay-Gillies, and that if the orders are not made, the Applicant will not employ Ms McKay-Gillies.
s.318(3)(a)(ii) - the view of the employees who would be affected by the Order
The Applicant submitted that Ms McKay-Gillies freely accepted the offer of employment with the Applicant and is fully aware of the basis of the offer. Furthermore, Ms McKay-Gillies provided a statement in support of the application.
s.318(3)(b) - whether any employees would be disadvantaged by the Order in relation to their terms and conditions of employment
The applicant submitted if the orders were made Ms McKay-Gillies would be provided with a number of advantages, namely:
a)she will be employed by the Applicant without being subject to a qualifying period;
b)she will be able to work at a location that serves her personal needs;
c)she will be able to withdraw her accrued paid annual leave which is not available per the transferable instrument;
d)her rate of pay will increase from her present hourly rate;
e)her accrued but untaken annual leave balance would be paid out; and
f)her service, sick leave and long service entitlements with SNP would be transferred to the Applicant upon commencement.
In noting the above mentioned advantages, the Applicant disclosed that Ms McKay-Gillies will no longer be entitled to certain benefits provided under the Agreement, namely:
a)she will not have the benefit of higher overtime rates of pay nor higher banking of time off in lieu of overtime;
b)she will not have the benefit of higher shift allowances such as night shift allowance, Saturday shift allowance and early morning shift allowance;
c)she will not have the benefit of higher on-call allowance;
d)she will not have the benefit of cashing out personal leave;
e)she will not have the benefit of a higher paid parental leave and its corresponding superannuation payment payable during both paid and unpaid parental leave;
f)she will not have the benefit of higher long service leave accrual and entitlement;
g)she will not have the benefit of having a minimum payment of four hours during public holidays;
h)she will not have the benefit of the payment of double time for working through a meal break;
she will not have the benefit of paid meal breaks if the majority of ordinary hours are worked between 7pm and 7am; and
j)she will not have the benefit of higher severance pay.
In her statement, Ms McKay-Gillies confirmed that she is aware of these disadvantages but still wishes to support the orders sought.
s.318(3)(c) - if the Order relates to an enterprise agreement—the nominal expiry date of the agreement
The nominal expiry date of the Agreement is 2 December 2026.
s.318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant submitted that this consideration is a neutral consideration.
s.318(3)(e) & (f) – economic disadvantage and degree of business synergy
The Applicant submitted that if the orders sought were not made, this would result in additional administrative burdens for administering different terms and conditions for a single employee. Further, the Applicant submitted that it did not want employees working alongside each other covered by different terms and conditions as it wishes to avoid disparity and discontentment between employees.
s.318(3)(g) - the public interest
The Commission, as presently constituted, is satisfied that it is not against the public interest to grant the Orders sought by the applicant.
Conclusion
Having considered the application and the materials filed in support of the application, the Commission is satisfied that all the requirements of s.318 of the FW Act have been met. An Order will be issued with this decision [PR762528].
COMMISSIONER
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<AE518400 PR762527>
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