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

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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CaseChat Overview and Summary

In the case of Frank Whiddon Masonic Homes of New South Wales Pty Limited trading as The Whiddon Group, the applicant sought an order concerning instruments related to a new employer and non-transferring employees. The applicant was a party to an Enterprise Agreement, which included provisions regarding the transfer of employees to a new employer under certain conditions. The dispute arose when the applicant proposed to transfer some of its business operations to another entity, and some employees chose not to transfer. The matter was heard in the Fair Work Commission, which was tasked with interpreting the relevant provisions of the Enterprise Agreement and determining the rights and obligations of the parties involved.

The legal issues before the Commission centred on the interpretation of specific clauses within the Enterprise Agreement. The primary question was whether the agreement allowed the applicant to require non-transferring employees to accept employment terms under a new Enterprise Agreement negotiated between the new employer and a relevant union. The applicant argued that the agreement permitted such a requirement, while the union contended that the non-transferring employees should retain their existing employment terms. The Commission needed to examine the language of the Enterprise Agreement and consider the intentions of the parties at the time of its creation.

After carefully examining the terms of the Enterprise Agreement and relevant precedents, the Commission found that the agreement did not explicitly mandate that non-transferring employees accept the new terms of the Enterprise Agreement with the new employer. The Commission concluded that the non-transferring employees were entitled to remain under the original terms of their employment unless they individually agreed to the new terms. The decision was based on the principle that changes to employment conditions for non-transferring employees require mutual agreement between the employer and the employee, which was not present in this case. The Commission's decision provided clarity on the rights of non-transferring employees in the context of business transfers under the applicable Enterprise Agreement.

The Fair Work Commission ordered that the non-transferring employees were not required to accept the terms of the new Enterprise Agreement negotiated between the new employer and the relevant union. The applicant was directed to continue employing the non-transferring employees under the terms of the original Enterprise Agreement until such time as individual agreements could be reached. This decision provided a clear resolution to the dispute and ensured that the rights of the non-transferring employees were protected in accordance with the law.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established