Dpg Services Pty Ltd T/A Opal Healthcare

[2023] FWC 2737

[2023] FWC 2737

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

(AG2023/3247)

DPG Services Pty Ltd

(AG2023/3248)

COMMISSIONER PLATT ADELAIDE, 20 OCTOBER 2023

Applications for orders relating to instruments covering new employer and non-transferring employees

1. On 14 September 2023, Dpg Services Pty Ltd T/A Opal Healthcare and DPG Services Pty Ltd (together, the Applicants) filed applications in the Fair Work Commission (the Commission) in respect of the operation of the Churches of Christ Life Care Inc Aged & Home Support Employees Enterprise Agreement 2014 (the 2014 Agreement) and the Churches of Christ Life Care Inc Nursing Employees - ANMF (Aged Care) - Enterprise Agreement 2015 - 2018 (the 2015 Agreement) (together, the Agreements) to non-transferring employees.

1. The 2014 Agreement was approved on 1 May 2015 and has a nominal expiry date of 30 June 2018. The 2015 Agreement was approved on 7 March 2016 and has a nominal expiry date of 31 December 2017.

1. The Applications pursuant to s.319(1)(b) of the Fair Work Act 2009 (the Act) seek that the Agreements will cover the new employer, Dpg Services Pty Ltd T/A Opal Healthcare and DPG Services Pty Ltd respectively and will also cover all non-transferring employees who perform work covered by the Agreements.

The relevant legislation

1. Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

1. Section 311(1) of the Act defines “transfer of business”, and section 312 defines the types of “transferable instrument” that may transfer from one employer to another.

1. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.

Consideration

1. The Agreements are transferable instruments for the purposes of s.312(1)(a) of the Act.

1. The Churches of Christ Life Care Incorporated (ABN 67 390 593 649) is the current employer for both Agreements. There are approximately 500 employees covered by the 2014 Agreement and 137 employees covered by the 2015 Agreement.

1. The Applicant has offered employment to a majority of those employees which, where the offer is accepted, would have commenced on the anticipated transfer date (4 October 2023), being within three months of the termination of their employment with the Churches of Christ Life Care Incorporated.

1. I am satisfied that there is likely to be transfer of business between Churches of Christ Life Care Incorporated (ABN 67 390 593 649) and the Applicants for the purposes of s.311(1) of the Act as employees of Churches of Christ Life Care Incorporated will cease to be employed by Churches of Christ Life Care Incorporated and will be engaged immediately by the Applicant to perform the same work on the same terms and conditions of employment.

1. On 25 September 2023, I conducted a conference, by telephone, in respect of both applications. Mr George Raptis was granted permission under s.596 of the Act to represent the Applicants at the conference and appeared with Ms Yolande Nealon. Mr Christopher Zammit represented the United Workers’ Union (UWU) and Ms Samantha Bennett represented the Australian Nursing and Midwifery Federation (ANMF). Both unions are entitled to represent employees covered by the respective Agreements.

1. On 12 October 2023, the Applicants representative provided a signed deed poll. The signed deed poll deals with the following issues:

   2014 Agreement

   ·  Overtime penalty rates for casual non-transferring employees working overtime (i.e., in excess of 10 hours) on a night shift, will be provide overtime penalties that are calculated on a compounding basis.

   ·  Overtime penalty rates for part-time employees required to work in excess of their rostered hours, they will be paid ordinary time plus shift loadings. Where in excess of 38 hours per week, 76 hours per fortnight or 8 hours per day (10 hours for night shift), the employee will be paid overtime penalty rates in accordance with the Agreement.

2015 Agreement

·  Casual weekend penalties for casual employees classified as Registered Nurse Level 1 Years 1 and 2 who work Saturdays or Sundays in isolation will confer higher penalty rates reflected in the Deed Poll.

·  In respect of time off in lieu (TOIL), agreement to take TOIL must be in writing and requires payment at the overtime rate applicable to when the overtime was worked in respect of any TOIL not taken within a period of 6 months after the overtime is worked or which is untaken as at termination. A non-transferring employee will be able to request payment in respect of untaken TOIL at any time, in which case payment will be made in the next pay period following the request at the overtime rate applicable to the overtime when worked.

1. On the basis of the signed deed poll provided by the Applicant, the United Workers’ Union and Australian Nursing and Midwifery Federation did not object to the applications in respect of the Agreements. 

1. Having considered each of the matters outlined in s.319(3) of the Act and the material that has been filed, I am satisfied that orders pursuant to s.319(1)(b) of the Act should be made in respect of both applications. The Orders[1] will be issued concurrently with this decision.

COMMISSIONER

[1] PR767116 and PR767118

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