Fresh Fields Administration & Employment Services Pty Ltd T/A Hall & Prior Aged Care Organisation

Case •

[2023] FWC 1815

•

25 JULY 2023
[2023] FWC 1815

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and transferring employees

Fresh Fields Administration & Employment Services Pty Ltd T/A Hall & Prior Aged Care Organisation

(AG2023/1509)

Aged care industry

COMMISSIONER SCHNEIDER

PERTH, 25 JULY 2023

Application for orders in relation to a transfer of business under s. 318

  1. Fresh Fields Administration & Employment Services Pty Ltd T/A Hall & Prior Aged Care Organisation (the Applicant) has applied to the Fair Work Commission (the Commission) under section 318 of the Fair Work Act 2009 (Cth) (the Act) for an Order in relation to a transfer of business.

  1. The transferrable instrument in this matter is the Braemar Presbyterian Care Employees Agreement 2016 (the Braemar Agreement or the Transferrable Instrument).[1] The application also concerns the Hall & Prior Aged Care Organisation Employee (Non-RN) Enterprise Agreement 2018 (the Hall & Prior Agreement).[2]

Background

  1. The Applicant and Braemar are negotiating a sale of business agreement.

  1. The Applicant operates in the aged care industry, providing a range of care services and programmes. Braemar also operates in the aged care industry, providing similar although not identical services.

  1. Pursuant to this sale of business agreement, the Applicant will offer employment to all employees classified as a support worker, maintenance/handy person, gardener, carer, and enrolled nurse at Braemar (the Transferring Employees).

  1. The Applicant currently employs just under 900 people in the same roles.

  1. It is anticipated that these employees will transfer from Braemar to the Applicant when the sale of the business is completed, on approximately 29 June 2023.

  1. In their employment, the Braemar Employees are covered by the Braemar Agreement.

  1. But for section 311 of the Act, following the commencement of their employment with Applicant, the Transferring Employees would be covered by the Hall & Prior Agreement.

  1. The Applicant submits that the Transferring Employees are employed to perform the same, or substantially the same, work as they did with Braemar.

  1. In accordance with section 313 of the Act, the Braemar Agreement will cover the Transferring Employees in their employment with the Applicant.

  1. The Applicant’s existing and any new non-transferring employees are covered by the Hall & Prior Agreement.

  1. The Applicant seeks the following orders:

  1. The Braemar Presbyterian Care Employees Agreement 2016 will not cover Fresh Fields Management (NSW) No 2 Pty Ltd T/A Hall & Prior Aged Care Organisation (Hall & Prior) or any employees transferring from The Commissioners of the Presbyterian Church In Western Australia T/A Braemar Presbyterian Care (Braemar)  in the role of support worker, maintenance/handy person, gardener, carer and enrolled nurse (Employees), subject to and in connection with a proposed transfer of business from Braemar to Hall & Prior, expected to occur on 29 June 2023 (Completion) (the transferring employees) who:

    a.until Completion were employed by Braemar as Employees;

    b.from Completion will commence employment with Hall & Prior as Employees; and

c.who will perform the same, or substantially the same work for Hall & Prior as they performed for Braemar using the assets that will be transferred from Braemar to Hall & Prior (the transferring work).

  1. The Hall & Prior Aged Care Organisation Employee (Non-RN) Enterprise Agreement 2018 will cover the Transferring Employees in their employment with Hall & Prior.

Legislation

  1. Section 318 of the Act provides:

“318 Orders relating to instruments covering new employer and 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 transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b)     an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

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 transferring employee, or an employee who is likely to be a transferring employee;

(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 transferring employee before the later of the following:

(a)     the time when the transferring employee becomes employed by the new employer;

(b)     the day on which the order is made.”

Consideration

Preliminary matters

  1. The Applicant submits that the Transferring Employees will cease employment with the previous employer and commence employment with the Applicant within three months, on approximately 1 July 2023, as required by the Act.

  1. The Applicant submits that the Transferring Employees will perform the same or substantially the same work as they did in their former employment.

  1. The Applicant notes the sale agreement between itself and Braemar, I find this satisfies the requisite connection between the old employer and the new employer under the Act, pursuant to section 311(3).

  1. I am satisfied that the Applicant is entitled to make this application as the new employer; the Transferring Employees will perform the same or substantially the same work for the Applicant; and there is a transfer of business within the meaning of section 311 of the Act.

  1. The effect of the Order sought by the Applicant would be that the Transferring Agreement would not cover the Applicant or any of the Transferring Employees. Section 318 of the Act provides that the Commission has discretion to make the Order and in determining whether to make the order, I must consider each of the matters in section 318(3) of the Act. I will now turn to consider these matters.

The views of the new employer

  1. The Applicant, being the new employer, is clearly supportive of the application. The Applicant believes that not granting the order will be burdensome for the following reasons:

·   The Applicant would unreasonably be required to dedicate personnel to administer the Braemar Employees Agreement. This is highly undesirable and would consume funding that should otherwise be directed to the care of the Applicant’s clients.

·   It would create disharmony between the Braemar Employees and the Applicant’s employees who would be on different terms and conditions.

·   The Braemar Employees would be disadvantaged in some respects as they would not be afforded benefits that are afforded to the Applicant’s employees.

  1. The Applicant has provided a statement of evidence from Mr Cameron Marshall (Mr Marshall), Director of Human Resources for the Applicant. Mr Marshall echoes the above reasons and provides further background on the transfer and discussion with employees.

The views the employees who would be affected by the order and whether they would be disadvantaged by the order

  1. The Applicant submitted the following in relation to this criterion:

·   At the time of offering employment with the Applicant, each Braemar Employee will be advised that this application is being made to the Commission and that, if successful, their employment would be in accordance with the Hall & Prior Agreement.

·   As outlined in the witness statement of Mr Marshall, the Applicant is consulting with the Braemar Employees and informing them of this process and that, if the orders are granted, their employment would be covered by the Hall & Prior Agreement.

  1. Further, the Commission issued Directions to the Applicant, which read as follows:

“1. The Applicant is required to provide a copy of the following material to affected employees, copied to the Fair Work Commission, by no later than 13:00PM 12, JULY 2023. 

i. A copy of these directions; and 
ii. A copy of the Form F40 Application with attachments. 

2. Any affected employees or Unions wishing to be heard must file in the Fair Work Commission, and serve a copy on the Applicant, by no later than 13:00PM 14 JULY 2023: 

i. Submissions in relation to the application; and/or 
ii. Other materials in relation to the application. 

3. In the event the Commission receives material from any affected employees or Unions wishing to be heard, the Applicant will be provided with an opportunity to file any material in reply.”

  1. The Applicant complied with the requirements of the Directions.

  1. The Commission did not receive any correspondence from relevant employees or Unions in response to the Directions.

  1. The Applicant provided a comparison document, comparing the provisions of both Agreements.

  1. The Applicant concedes that there are some terms within the Transferrable Agreement that are more favourable than those within the Hall & Prior Agreement.

  1. The Applicant submits that some of these should be seen as neutral and that they will only have limited impact on the Transferring Employees.

  1. Further, the Applicant submits, it will be providing the Transferring Employees with higher rates than under the Transferrable Agreement.

  1. The statement of Mr Marshall supports the above submissions and details the plans for consultation with employees regarding this application.

  1. Draft copies of correspondence to employees are annexed to Mr Marshall’s statement, reflecting the Applicant’s efforts to ensure transparency and education for employees subject to the order.

  1. In summary, the Applicant’s position is that, overall, the Transferring Employees will generally not be disadvantaged by the order in relation to their terms and conditions of employment.

The nominal expiry date of the agreement

  1. The Commission notes that both Agreements have passed their nominal expiry dates:

·   The nominal expiry date of the Braemar Agreement is 1 October 2019.

·   The nominal expiry date of the Hall & Prior Agreement is 30 June 2021.

Whether the transferable instrument would have a negative impact on the productivity of the
new employer’s workplace

  1. The Applicant submits that the order will have a positive impact on its productivity and that the continuation of the current arrangement will have a negative impact on its productivity.

  1. The Applicant notes the administrative burden and payroll issues arising from the application of two separate instruments for a group of employees preforming the same work. The Applicant also notes the inconsistency in terms and conditions between both Agreements, and the potential for disharmony this may cause.

  1. I accept these submissions and that these matters weigh in favour of making the proposed order.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

  1. The Applicant submits that it would incur significant economic disadvantage as a result of the Braemar Agreement covering it and the Transferring Employees, as the Applicant would be required to incur greater administrative and human resources costs.

The degree of business synergy between the transferable instrument and any workplace instrument that covers the new employer

  1. The Applicant states that there is some business synergy between the Agreements. Both Agreements, as they operate within the same industry, are underpinned by the same Award.

  1. However, the Applicant again notes the inconsistencies between the terms of each Agreement.

The public interest

  1. The Applicant submits that it is in the public interest that the services currently delivered by the Transferring Employees continue to be offered to clients, many of whom are vulnerable or disadvantaged members of the community, in a cost-effective way. 

  1. Accordingly, the Applicant submits that not granting the order, therefore increasing the Applicant’s administrative costs to deliver the services, is contrary to the public interest.

Conclusion

  1. In consideration of all the circumstances, and importantly noting the lack of objection from any interested employees or employee bodies, I am satisfied that the order sought should be made. The Order has been issued concurrently.[3]


COMMISSIONER

Determined on the papers.


[1] [PR592703]; [AE424258].

[2] [PR608333]; [AE428915].

[3] [PR764522].

Printed by authority of the Commonwealth Government Printer

<AE424258  PR764521>

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