DPG Services Pty Ltd T/A Opal HealthCare

[2024] FWC 1680

[2024] FWC 1680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

DPG Services Pty Ltd T/A Opal HealthCare

(AG2024/2062)

COMMISSIONER WILSON MELBOURNE, 28 JUNE 2024

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

1. This decision concerns an application by DPG Services Pty Ltd T/A Opal HealthCare (the Applicant) for an order pursuant to s.319(1) of the Fair Work Act 2009 (Cth) (the Act) that the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024[1] cover new employees employed by the Applicant, in the home care classifications referred to in the Agreement.

New non-transferring employees of new employer to be covered by transferable instrument

1. I am satisfied that the Agreement is a transferable instrument within the meaning of s.312 of the Act, and I observe that the Applicant accepts that the Agreement is a transferable instrument. Section 314 of the A

2. ct sets out when new non-transferring employees (New Employees) may be covered by a transferring instrument. The section provides:

“New non-transferring employees of new employer may be covered by transferable instrument

(1) If:

(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and

(b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and

(c) the non-transferring employee performs the transferring work; and

(d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the nontransferring employee
In relation to that work;

then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.

(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

(3) This section has effect subject to any FWC order under subsection 319(1).”

1. The Agreement, the transferable instrument, in accordance with s.313(1)(a) is an instrument that covers the new employer and the transferring employees in relation to the transferring work.

1. Section 319 of the Act sets out the matters the Commission must have regard to in determining if the orders sought should be granted. Section 319 provides:

“Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note:  Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

CONSIDERATION

1. It is necessary to consider s.319(3), which states that in deciding whether to make an order under s.319(1), the Commission must take into account certain matters that are set out in ss.319(3)(a) to (g), which I now do.

The views of the new employer – s.319(3)(a)(i)

1. Opal HealthCare’s view is that the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024 should apply to any Transferring Employees and New Employees, as it provides better conditions than the Award, provides consistency for Transferring Employees and reduces administrative costs and challenges for the Applicant in engaging New Employees.[2]  

The views of the employees who would be affected by the order - s 319(3)(a)(ii)

1. It is not possible to obtain the views of the employees who will be affected by the order because there are currently no employees affected and as such, the views of the employees cannot be obtained at this time.

1. In an email to my Chambers on 17 June, the Australian Nursing & Midwifery Federation confirmed that it had been engaged in discussions with the relevant parties and is not opposed to the Applicant’s s 319 application. The Health Workers Union did not respond to correspondence sent by my Chambers on 14 June 2024.  

Whether any employees would be disadvantaged by the order - s 319(3)(b)

1. In its application, Opal HealthCare submits that the transferable instrument is more beneficial than the Award that would otherwise apply and I accept that this is the case. Accordingly, New Employees will not be disadvantaged in relation to their terms and conditions of employment if the s.319 order is made.

1. This weighs in favour of granting the order.

The nominal expiry date of enterprise agreement - s 319(3)(c)

1. The BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024 nominally expires on 31 December 2025.[3] I consider that the granting of the order sought would not disadvantage employees. It is therefore a neutral consideration.

Whether negative impact on productivity etc - s 319(3)(d)

1. The Applicant submits that the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024 applying to the Applicant’s workplace would aid its productivity, as the alternative, having employees of the same cohort covered by two different industrial instruments, potentially providing different entitlements, would not promote a cohesive, equitable and inclusive work culture.[4] 

1. I am satisfied that there will be no negative impact on productivity if the order is granted. It is therefore a neutral consideration.

Whether significant economic disadvantage - s 319(3)(e)

1. The Applicant submits that it would be economically disadvantaged by the order not being granted, as it may then be required to administer two different industrial instruments within the workplace in respect of employees who perform the same work.[5] 

1. I consider that if the order sought were made, the Agreement’s coverage of New Employees would not cause any economic disadvantage. It is therefore a neutral consideration.

Whether there is business synergy between instruments etc - s 319(3)(f)

1. Opal HealthCare submits that if the order is not made, there will be two separate frameworks of regulation applying to employees performing the same or substantially similar work across the Opal HealthCare’s business, reducing synergy.[6]

1. I am satisfied this criterion weights in favour of granting the order.

The public interest - s 318(3)(g)

1. I am not satisfied this matter engages the public interest. It is therefore a neutral consideration.

CONCLUSION

1. Having taken into account the matters in ss.314 and 319(3), I consider that it is appropriate for the Commission to exercise its discretion under s.319(1) to make the orders that are sought.

1. I order under s.319(1)(a) that the Non-Transferring Employees will be covered by the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024. An order will be issued separately in PR776528.

COMMISSIONER

[1] AE523572.

[2] DPG Services Pty Ltd TA Opal HealthCare, F40, Application for orders in relation to a transfer of business, 7 June 2024, [23] and [29].

[3] AE523572.

[4] DPG Services Pty Ltd TA Opal HealthCare, F40, Application for orders in relation to a transfer of business, 7 June 2024, [25].

[5] Ibid, [28].

[6] Ibid, [31-3].

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