DPG Services Pty Ltd T/A Opal Aged Care
[2019] FWC 5302
•30 JULY 2019
| [2019] FWC 5302 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
DPG Services Pty Ltd T/A Opal Aged Care
(AG2019/2336)
Aged care industry
DEPUTY PRESIDENT MANSINI | MELBOURNE, 30 JULY 2019 |
Application for orders relating to transfer of industrial instruments.
[1] This is an application by DPG Services Pty Ltd trading as Opal Aged Care (Applicant) for orders about the transfer of industrial instruments, in circumstances of a transfer of business, pursuant to s.318 of the Fair Work Act 2009 (Cth) (Act).
[2] On 17 June 2019, the Applicant announced its acquisition of Somercare Pty Ltd ATF Somercare Unit Trust t/a Somercare (the Somercare Aged Care facility), to be effective 1 August 2019. The employees of the Somercare Aged Care facility are presently covered by the Somercare Aged Care Enterprise Agreement 2018.
[3] Also on 17 June 2019, the Applicant notified employees of the Somercare Aged Care facility, the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union Branch No 1 T/A Health Workers Union (HWU) of the acquisition and its intention to seek orders that the Opal Aged Care (Victoria) Enterprise Agreement 2018 cover and apply to any transferring employees from 1 August 2019.
[4] On 2 July 2019, this application was filed with the Commission. The following orders are ultimately sought:
“(a) That the Somercare Aged Care Enterprise Agreement 2018 will not cover:
(i) DPG Services Pty Ltd t/a Opal Aged Care; and
(ii) Any employees of DPG Services Pty Ltd t/a Opal Aged Care formerly engaged by Somercare Pty Ltd ATF Somercare Unit Trust t/a Somercare.
(b) That the Opal Aged Care (Victoria) Enterprise Agreement 2018 will cover:
(i) DPG Services Pty Ltd t/a Opal Aged Care; and
(ii) Any employees of DPG Services Pty Ltd t/a Opal Aged Care formerly engaged by Somercare Pty Ltd ATF Somercare Unit Trust t/a Somercare.
(c) In accordance with s.318(4) of the Fair Work Act 2009 (Cth) these orders will come into effect on the latter of the date of this order or 1 August 2019.”
[5] On 17 July 2019, representatives of the Applicant, the ANMF and the HWU attended a Mention before the Commission. At the Mention, the ANMF indicated its support of the application and a program was agreed for the Applicant to file evidence in support of its application and to allow further time for the HWU to consult with its members.
[6] The Commission directed service of those directions (along with the application and accompanying materials) on any transferring and potentially transferring employees, which included a requirement to respond by 25 July 2019 if any relevant employee organisation, transferring or potentially transferring employee opposed the application.
[7] On 22 July 2019, an affidavit of Scott Cayzer, State Human Resources Manager of the Applicant, was filed. It corroborates the factual claims made in the application.
[8] No opposition to the application was received from or on behalf of employee(s) of the Somercare Aged Care facility.
[9] The relevant statutory provision is found at s.318 of the Act and extracted in full at Annexure A.
[10] Taking into account the matters at s.318(3) and on the Applicant’s evidence of 22 July 2019, which was not contested, I am satisfied that each of the requirements of s.318 of the Act have been met and an order should be made.
[11] An order will issue with this decision, to operate from the time when the transferring employees become employed with the Applicant being 1 August 2019.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR710854>
ANNEXURE A – EXTRACT FROM THE FAIR WORK ACT 2009 (CTH)
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.
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