East Coast Senior Care Pty Ltd

[2014] FWC 2074

[2014] FWC 2074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

East Coast Senior Care Pty Ltd
(AG2014/3864)

EVERGREEN LIFE CARE LIMITED ENTERPRISE AGREEMENT 2013

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 27 MARCH 2014

Transferrable instrument - variation to clauses 29 and 30.

[1] East Coast Senior Care Pty Ltd (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.320 of the Fair Work Act 2009 (the Act) to vary the Evergreen Life Care Limited Enterprise Agreement 2013 (the Agreement).

[2] The grounds relied upon by the Applicant in its application to vary the Agreement includes the following:

“ The Agreement covers employees of Evergreen Life Care Limited (Evergreen) who perform work at Tea Gardens Manor in positions covered by the Agreement;

• Evergreen currently owns Tea Gardens Manor and the associated assets;



• Evergreen is a public benevolent institution and as such is entitled to access certain tax concessions, including exemption from fringe benefits tax;



• The Applicant is currently wholly owned by Evergreen;



• The Applicant is not the current employer of employees at Tea Gardens Manor. Transferring employees are employed by the parent company, Evergreen;



• The Applicant is not a public benevolent institution and will not become such an institution either before or after the sale;



• Evergreen has entered into an agreement with TGM Care Pty Limited as trustee for the TGM Care Trust (TGM) which, subject to certain requirements, provides for the sale of its shareholding in the Applicant to TGM and the sale of certain assets, including Tea Gardens Manor;



• The sale documents provide that in connection with the sale of Tea Gardens Manor employees of Evergreen who work at Tea Gardens Manor will, subject to completion of the sale, cease their employment with Evergreen and commence employment with the Applicant performing the same, or substantially the same, work they performed for Evergreen;



• If the sale completes and employees currently employed by Evergreen commence employment with the Applicant, a transfer of business within the meaning of s.311 of the Act will occur;



• The Agreement will then transfer and cover the Applicant and the transferring employees pursuant to ss.312 and 313 of the Act;



• Clause 29 of the Agreement provides employees of Evergreen with remuneration packaging benefits. These benefits were agreed as part of the Agreement because they can be provided without Evergreen incurring any obligation to pay fringe benefits tax given Evergreen’s status as a public benevolent institution. As it is not a public benevolent institution, the Applicant is unable to offer the same remuneration packaging benefits to the transferring employees or otherwise without incurring an obligation to pay fringe benefits tax.”

[3] A teleconference of the parties was convened on 24 March 2014 to consider the proposed variation (as well as an application pursuant to s.319 of the Act). The teleconference participants included Kylie Richardson, Maddocks, on behalf of the Applicant, Bert Coquillon for the Health Services Union, NSW Branch (HSU) and Catherine Wild for the NSW Nurses and Midwives’ Association (NSWNMA).

[4] The HSU and the NSWNMA submitted that they had no objections to the application and expressed their support in having the variation to the Agreement approved.

[5] I am satisfied that the variation is necessary to remove terms that are not, or will not be, capable of meaningful operation in relation to the transferring employees and the continuing business of the Applicant as the new employer.

[6] I have taken into account the other matters referred to in s.320(4) of the Act as relevant to the application and have had regard to the grounds relied upon by the Applicant and the support provided by the HSU and the NSWNMA. Accordingly, I am satisfied that it is appropriate to vary the Agreement as sought. An Order to this effect will be issued reflecting this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE400464  PR549070 >