Edmund Rice Education Australia NSW Colleges Ltd
[2023] FWC 401
•20 FEBRUARY 2023
| [2023] FWC 401 |
| 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 NSW Colleges Ltd
(AG2022/5556)
| Educational services | |
| DEPUTY PRESIDENT CROSS | SYDNEY, 20 FEBRUARY 2023 |
Application for an order relating to instruments covering new employer and non-transferring employees
Edmund Rice Education Australia NSW Colleges Ltd (the Applicant) has applied for an order under s.319(1)(b) of the Fair Work Act 2009 (the Act) that the NSW Catholic Independent Schools (Support Staff – Model B) Multi-Enterprise Agreement 2020 [AE509346] and the NSW Catholic Independent Schools (Teachers– Model B) Multi-Enterprise Agreement 2020 [AE509347] (the Agreements) will cover the Applicant in respect of the employment of non-transferring employees performing transferring work for the Applicant.
The Agreements were approved by the Commission on 26 October 2020[1] and reached its nominal expiry date on 31 December 2021. The Agreements covered the Independent Education Union of Australia. In the absence of an order in the form sought, the relevant non-transferring employees would otherwise be covered by the Educational Services (Schools) General Staff Award or the Educational Services (Teachers) Award[2] (the Award).
The applicable legislation
Sections 317 and 319 of the Act relevantly provide:
“317 FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
…
319 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.
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.”
Background
The Form F40 – Application for orders in relation to a transfer of business filed in support of this application, together with the statutory declaration of Kym Bakaric, set out the relevant background to the application.
The Trustees of Edmund Rice Education Australia ABN 96 372 268 340 is currently a named employer under the Agreements. The Trustees of Edmund Rice Education Australia is the current employer of the employees at the 7 schools covered by the Agreements set out in Schedule 3 to this Application (Old Employer).
Following a review of its governance arrangements the Trustees of Edmund Rice Education Australia have established a new corporate structure that includes the establishment of the Applicant (Administrative Restructure). The transfer of the relevant assets and employees of each of the schools owned by the Trustees of Edmund Rice Education Australia to the Applicant is formalised by way of the execution of the agreement known as the “Schools Transfer Agreement: Edmund Rice Education Australia” between Trustees of Edmund Rice Education Australia and Edmund Rice Education Australia NSW Colleges Ltd dated 22 December 2022 (School Transfer Agreement).
The Applicant was registered with ASIC as a public company limited by guarantee in August 2022 and will by virtue of the School Transfer Agreement and s.311 of the Act become the employing entities of the employees employed at the schools covered by the Agreement on and from 1 January 2023 (the Transfer Date).
In addition, the Applicant submits that the order sought would not cause the Applicant to incur any economic disadvantage as the Orders would in effect preserve the current employment arrangements in the schools for all transferring and Non-Transferring employees. A Non-Transferring employee is an employee who commences on or after the Transfer Date who’s employment would be covered by the Educational Services (Schools) General Staff Award or the Educational Services (Teachers) Award.
As such, the Applicant seeks an order to ensure that from the Transfer Date:
(a)the Applicant will remain covered by the Enterprise Agreements at the relevant schools, in respect of transferring employees and Non-Transferring employees to ensure a fair, stable, consistent and certain platform of minimum rates of pay and other terms and conditions of employment; and
(b) the Administrative Restructure does not cause Non-Transferring employees to be on different and potentially less advantageous rates of pay and other conditions than transferring employees who perform the same, or substantially the same work at the relevant schools.
The Independent Education Union of Australia (NSW/ACT Branch) (‘the Union’) is an employee industrial organisation which is entitled to represent the interests of employees who are employed in the non-government schools sector including teachers and support staff. Pursuant to s.183 of the Act, the Union is covered under the Agreements.
The Union supports the application and the making of the orders as proposed in Schedule 2 of the application.
Although the Agreements have passed their nominal expiry dates of 31 December 2021, the Union submitted that the preservation of employee entitlements contained in the Agreements, which are superior to the applicable Modern Awards, is in the best interests of transferring and non-transferring employees of the Applicant.
The Union further submitted that the making of the Orders would be in the public interest because the orders would result in the preservation of advantageous terms and conditions of employment for employees which exceed the minimum terms and conditions of employment contained in the applicable Modern Awards such as improved wages and salaries, more generous redundancy entitlements, greater long service leave entitlements and access to paid parental leave.
Conclusion
Having considered each of the matters outlined in s.319(3) of the Act, the submissions, and the material that has been filed, it is apparent that a number of the factors weigh in favour of granting the application. There are no factors weighing against a decision to make the order. I am satisfied that an order pursuant to s.319(1)(b) of the Act should be made. The Order (PR750718) will take effect from the date that the order is made, or the date from which employment of each of the Non-Transferring Employees commences with the Applicant, whichever is the latter.
DEPUTY PRESIDENT
[1] [2020] FWCA 5695; [2020] FWCA 5691.
[2] MA000076.
Printed by authority of the Commonwealth Government Printer
< PR750717>
0
0
0