Douglass Hanly Moir Pathology Pty Ltd T/A Douglass Hanly Moir

[2021] FWC 5205

[2021] FWC 5205

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
(AG2021/6799)

Health and welfare services
COMMISSIONER JOHNS	SYDNEY, 23 AUGUST 2021

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (Act) made by Douglass Hanly Moir Pathology Pty Ltd T/A Douglass Hanly Moir (applicant) seeking an Order from the Fair Work Commission (Commission) that a transferrable instrument, being the SAN Pathology Pty Limited Staff Enterprise Agreement 2015-2017 (the Agreement) not apply to the applicant and Mr Oliver Santos after the time he commences his employment with the applicant.

[2] The application was supported by a statement of Mr Greg Henry, the applicant’s Human Resources Manager, dated 17 August 2021. The application was also supported by a statement of Mr Santos, dated 4 August 2021.

[3] Section 318 of the 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.”

[4] The Commission will now consider each of the matters it is required to consider under s.318(3).

s.318(3)(a)(i) - the views of the new employer

[5] The applicant submitted that the Order is pivotal to facilitating the employment of Mr Santos as the applicant would not employ Mr Santos without the Order.

s.318(3)(a)(ii) - the view of the employees who would be affected by the Order

[6] The applicant submitted that Mr Santos freely accepted the offer of employment with the applicant and is fully aware of the basis of the offer, including that he will not be covered by the Agreement. Furthermore, Mr Santos has provided a statutory declaration declaring his support for this application.

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

[7] The applicant submitted if the Order was made M Santos would be provided with a number of advantages, namely:

a) he will be employed by the applicant,

b) his rate of pay will increase from his present hourly rate, with the potential to increase his earning capacity further

c) he will be provided with greater career prospects and possible advancement. The applicant is a much larger organisation than SAN Pathology, with far greater career opportunities, and

d) he will earn $8,142.00 (gross) more per year, a wage which is higher than the rate of pay under the Health Professionals and Support Services Award 2020 (Award).

[8] In noting the above mentioned advantages, the applicant disclosed that Mr Santos will no longer be entitled to certain benefits provided under the Agreement, namely:

a) he will not be able to bank hours as permitted under clause 28 of the Agreement,

b) he will not have the benefit of penalty rates and shift allowances for working weekends or shift work under clause 33 of the Agreement, and

c) he will no longer be entitled to severance pay as outlined in clause 22.3 of the Agreement.

s.318(3)(c) - if the Order relates to an enterprise agreement—the nominal expiry date of the agreement

[9] The nominal expiry date of the Agreement is 30 June 2017.

[10] The Applicant submitted that Mr Santos commenced employment with SAN Pathology on 14 December 2020 and was not employed before the nominal expiry date.

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

[11] The applicant submitted that this consideration is a neutral consideration, however noted that the applicant has not been operating profitably over the years.

s.318(3)(e) & (f) – economic disadvantage and degree of business synergy

[12] The applicant submitted that if the Order sought were not made, this would result in additional administrative burdens for administering different terms and conditions for a single employee. Further still, the applicant noted that it did not want employees working alongside each other covered by different terms and conditions as it would like to avoid disparity between employees.

s.318(3)(g) - the public interest

[13] The Commission, as presently constituted, is satisfied that it is not against the public interest to grant the Orders sought by the applicant.

[14] 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 Act have been met. An Order will be issued with this decision

COMMISSIONER

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