Edmund Rice Education Australia Colleges Ltd Edmund Rice Education Australia Flexible Schools Ltd

[2023] FWC 406

[2023] FWC 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Edmund Rice Education Australia Colleges Ltd
Edmund Rice Education Australia Flexible Schools Ltd

(AG2023/101; AG2023/102)

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 23 FEBRUARY 2023

Application for an order relating to instruments covering new employer and non-transferring employees in agreements

1. On 19 January 2023, Edmund Rice Education Australia Colleges Ltd and Edmund Rice Education Australia Flexible Schools Ltd (the Applicants) made two applications pursuant to section 319 of the Fair Work Act 2009 (Cth) (the Act) seeking that the Fair Work Commission (the Commission) make orders that the following agreements will cover non-transferring employees of the Applicants who perform, or are likely to perform, transferring work as a consequence of a restructure of the Applicants’ businesses:

·  Tasmanian Catholic Education Single Enterprise Agreement 2018; and

·  Catholic Schools (Northern Territory) Collective Enterprise Agreement 2018 – 2021.

(collectively, Transferable Instruments)

1. The Applicants made submissions via Form F40 applications, which were accompanied by statutory declarations of Kym Bakaric, Director of Human Resources.

1. On 19 January 2023, the matters were allocated to my chambers for consideration.

1. On 1 February 2023, a mention was held which was attended by representatives of the Applicants and the Independent Education Union of Australia (IEU).

1. The following day, my chambers issued directions which, amongst other things, invited employees or employee organisations to contact my chambers with any objection to these applications by 15 February 2023. No objections were received. 

Background

1. The following matters do not appear to be in dispute.

1. I am satisfied that the Applicants have standing to bring these applications as new employers under section 319(2)(a) of the Act.

1. The Trustees of Edmund Rice Education Australia is currently a named employer under both Transferable Instruments. As part of a corporate restructure of its business, it has been decided that, in essence, employees previously employed at three schools under the Transferable Instruments will now be employed by newly established entities, specifically:

·   Employees previously performing work at St Virgil’s College, Hobart will now be employed by Edmund Rice Education Australia Colleges Ltd; and

·   Employees previously performing work at Oscar Romero Flexi Schools Network (St Joseph’s – Alice Springs) and Nano Nagle Flexi Schools Network (St Francis FLC, Hobart, TAS) will now be employed by Edmund Rice Educational Australia Flexible Schools Ltd.

1. As a result of this change, the Applicants have sought orders under section 319 that each of the Transferable Instruments that previously applied to The Trustees of Edmund Rice Education Australia be applicable to non-transferring employees.

1. On the material before me I am satisfied that, absent the orders sought, the Transferable Instruments will not cover non-transferring employees of the Applicants in relation to the transferring work by reason of section 314 of the Act as they appear to be covered by either the Educational Services (Schools) General Staff Award or the Educational Services (Teachers) Award (Awards).

Consideration

1. The discretion to make the orders sought by the Applicants will only be exercised after taking into account the matters enumerated in section 319(3).

1. The views of the Applicants are clear. They support the making of the orders and say that absent the making of the orders the terms and conditions of employment for effected employees would be regulated by the Awards. The Applicants submit that each of the Transferable Instruments “has been reviewed and approved by the Commission in accordance with the Act” and on an overall basis “provides rates of pay and terms and conditions of employment that will not disadvantage a Non-Transferring employee by comparison to the relevant Award.”

1. The Independent Education Union of Australia are covered by the Transferable Instruments. The IEU have confirmed their consent to the applications and proposed orders.

1. I am satisfied that non-transferring employees would not be disadvantaged in relation to their terms and conditions of employment because absent the orders sought, such employees would be covered by the Awards. Notwithstanding that the nominal expiry date for both Transferable Instruments is 1 September 2021, each of the Transferable Instruments provides for terms and conditions of employment superior to the Awards. I have given consideration to this in making my decision.

1. The Applicants are each of the view, and I am satisfied, that the orders, if made, would have no negative impact on productivity at the relevant schools, as the orders would in effect preserve the current employment arrangements at those schools, for all transferring and non-transferring employees. Similarly, the orders would not cause each of the Applicants to incur any economic disadvantage, as it is likely that if the orders were not made, the Applicants would incur additional costs and require additional resources to administer different industrial arrangements at the relevant schools.

1. As to the question of business synergy, the Applicants submit, and I accept, that there is a clear and compelling business synergy between the Applicants and the Transferable Instruments, while there is no obvious business synergy between the Enterprise Agreements and the Awards so as to compel a conclusion to prefer non-transferring employees to be covered by the Awards. I am also satisfied that it is not contrary to the public interest to make the orders the Applicants seek.

1. The Applicants have also noted that on 12 January 2023, similar orders as those sought in the applications before me were made by Simpson C in Fair Work Commission proceedings.[1] They submit that there would be comity in granting the applications before me on similar bases. I accept this submission.

Conclusion

1. Taking into account each of the matters set out in section 319(3) and the material outlined above, I am satisfied that the orders sought should be granted.

1. Orders giving effect to this decision will be issued separately.[2]

COMMISSIONER

[1] [2023] FWC 79; [2023] FWC 80

[2] PR750732, PR750733.

Printed by authority of the Commonwealth Government Printer

<AE502682, AE503121  PR750731>