DPG Services Pty Ltd T/A Opal HealthCare

[2021] FWC 6453

[2021] FWC 6453

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 HealthCare
(AG2021/8231)

Aged Care Industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 24 NOVEMBER 2021

Application for an order relating to instruments covering new employer and transferring employees – order made.

[1] On 5 November 2021 DPG Services Pty Ltd T/A Opal HealthCare (the Applicant) made an application for an order relating to instruments covering a new employer and transferring employees pursuant to section 318 of the Fair Work Act 2009 (Act). The application seeks an order of the Fair Work Commission relating to current employees of Aveo Group Limited, formerly FKP Limited (Aveo), in connection with the Aveo Mingarra Aged Care facility in Croydon, Victoria (the Facility). Specifically, the orders relate to employees of Aveo who are prospective employees of the Applicant (the Transferring Employees).

[2] The Applicant is seeking an order that the FKP & ANF AND HSU Collective Agreement 2008-2011 (Transferrable Instrument) will not cover the Transferring Employees or the Applicant, and that the Opal Aged Care (Victoria) Enterprise Agreement 2018 will cover each of the Transferring Employees.

[3] The Transferrable Instrument covers Aveo in connection with the Facility, the Australian Nursing & Midwifery Federation (ANMF), the Health Services Union (HSU), and employees whose employment is subject to the Transferrable Instrument. 1

Background

[4] The Applicant and Aveo Group Limited have entered an agreement for the purchase and take over of the operations of the Facility from Aveo to the Applicant.

[5] Aveo carries on a business of providing residential aged care services in Victoria and currently employees 88 employees at the Facility. The Applicant submits that approximately 87 of those employees are covered by the Transferring Instrument and the Applicant intends to offer employment to those 87 employees.

Directions

[6] On 8 November 2021 I issued directions requiring the Applicant to serve the From F40 Declaration, all supporting documentation filed with the Form F40 and a copy of my directions on all Transferring Employees, the ANMF and the HSU by 10 November 2021.

[7] The directions required that if any of the Transferring Employees, the ANMF or the HSU wished to file written material in response to the application, they were to do so by close of business 17 November 2021.

[8] Following an extension request from the ANMF, I issued further revised directions on 17 November 2021 which required that if the ANMF or the HSU wished to file written material in response to the application, they were to do so by noon 22 November 2021.

[9] The ANMF sent the following email to my Chambers on 22 November:

“Th[e] ANMF has meet with members to discuss the proposed change. We understand the Applicant has committed to ensure that:

a) No employee will have their salary reduced as a result of this process, and that this is based on current actual payroll data provided by Aveo to the Applicant (as opposed to the rates of pay provided in Attachment 7 to the Application); and

b) Employees will be offered their existing contracted shifts.

On this basis, we have no additional written material to provide in respect of this matter.”

[10] No submissions were received on behalf of the HSU or the Transferring Employees.

[11] In light of email received from the ANMF, the Applicant confirmed on 22 November 2021 that they did not wish to file any further material in support of the application.

[12] In the circumstances and in the absence of any party seeking to be heard, I have decided to determine the matter on the papers without holding a hearing.

Legislative context

[13] Section 318 sets out the circumstances in which such orders may be made by the Commission, as follows:

“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;

(e) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(d) 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.”

Transfer of business

[14] The power to make orders under section 318 is premised on the Commission being satisfied that there has been, or that there is likely to be, a transfer of business for the purposes of section 311 of the Act. I am satisfied that there will likely be a transfer of business from Aveo Group Limited to the Applicant for the following reasons.

[15] First, as per subsections 311(1)(a) and (b), the Applicant intends to offer employment to all employees covered by the Transferrable Instrument who are expected to commence their employment with the Applicant on 1 December 2021, being 3 months of them ceasing to work for Aveo. Secondly, having regard to the information in the application, I consider that the work to be performed by the Transferring Employees for the Applicant is the same or substantially the same as the work they will perform for Aveo (section 311(1)(c)). Finally, there is a “connection” between the Applicant and Aveo as described in section 311(4) because the transfer of employment derives from a transfer of assets from Aveo to the Applicant.

Consideration

[16] Having considered the application and the accompanying materials, which were not contested, and taking into account the provisions of section 318(3)(a)-(g) of the Act, I am satisfied that it is appropriate to make the orders sought under section 318(1)(a)-(b) of the Act.

[17] Pursuant to section 318 of the Act I intend to order that the FKP & ANF AND HSU Collective Agreement 2008-2011 does not cover and will not cover the Applicant or the Transferring Employees, and that the Opal Aged Care (Victoria) Enterprise Agreement 2018 will cover each of the Transferring Employees.

[18] In accordance with section 318(4) of the Act, the orders will have effect from the date of the order or the date the employees’ employment transfers to the Applicant, whichever is the later.

[19] An order (PR736147) giving effect to this decision will issue today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC327832  PR736144>

 1   FKP & ANF AND HSU Collective Agreement 2008-2011, clause 4