Frank Whiddon Masonic Homes of New South Wales Pty Limited T/A The Whiddon Group

[2018] FWC 1338

[2018] FWC 1338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Frank Whiddon Masonic Homes of New South Wales Pty Limited T/A The Whiddon Group
(AG2018/725)

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 27 MARCH 2018

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

[1] An application under s.319 of the Fair Work Act 2009 (the Act) for an order that the Star Aged Living Residential Support Staff Enterprise Agreement 2017 (the Agreement) covers Frank Whiddon Masonic Homes of New South Wales Pty Limited T/A The Whiddon Group (the Applicant) in respect of non-transferring employees was filed by the Applicant on 28 February 2018.

[2] The Applicant seeks the following order under s.319 of the Act, that:

Pursuant to s.319(1)(b) of the Act, the Star Aged Living Residential Support Staff Enterprise Agreement 2017 will cover any non-transferring employee who:

(a) is employed by the Applicant on or after 2 March 2018 or the date on which the order is made by the Fair Work Commission, whichever is the latter; and

(b) is employed to perform work at the Star Gardens Aged Care facility located at 14 Brooklands Drive Beaudesert, Queensland; and

(c) is employed in a classification in the Agreement,

unless and until the Agreement is terminated or replaced in accordance with the Act (as amended or replaced from time to time).

[3] The Applicant has filed materials in support of the application.

[4] An Affidavit of Joshua Kevin Keech, Executive General Manager People and Culture for the Applicant, was filed, which described four categories of employees at the Star Gardens Facility, being those covered by the Social, Community, Home Care and Disability Services Award 2010, the employees covered by the Star Aged Living Residential Support Staff Enterprise Agreement 2017 (the Support Staff Agreement), those under the Star Aged Living – Residential Nurses Enterprise Agreement 2017 (the Nurses Agreement), and award-free employees whose terms and conditions of employment are set out in common law contracts with Star Aged Living Pty Ltd (the previous employer). Only those employees covered by the Support Staff Agreement are subject of the proposed orders in this application and a separate application has been made in respect of the Nurses Agreement (AG2017/724).

[5] Mr Keech confirmed that the Agreement provides for more favourable terms and conditions than those provided for in the Whiddon Group Agreement 2014 (the Whiddon Agreement), under which non-transferring employees would be covered if engaged by the Applicant and the orders sought not made.

[6] The material provided by the Applicant discloses that the Applicant does not currently employ any non-transferring employees who would be affected by the making of the orders sought.

[7] Additionally, there are no Employee Organisations covered by the Agreement.

[8] I have considered the matters set out in s.319(3)(a) to (g) of the Act and I am satisfied on the basis of supporting documentation provided with the application that the order should be issued. Consequently the Application is granted and the Order [PR600905] in the terms sought will be issued accordingly.

COMMISSIONER

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