DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees

Fresh Fields Aged Care Pty Ltd T/A Hall & Prior
(AG2019/758)

Aged care industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 28 MARCH 2019

Application by Fresh Fields Aged Care Pty Ltd.

[1] Fresh Fields Aged Care Pty Ltd T/A Hall & Prior (Hall & Prior) own and operate numerous and various aged care facilities, including several aged care facilities in the Perth metropolitan region. 1 Within its organisation there are approximately 878 employees who are covered by theHall & Prior Aged Care Organisation Employee (Non-RN) Enterprise Agreement 2018 (Hall & Prior Agreement).2 Come 12:00am on 1 April 2019,3 Hall & Prior will take over the lease and operation of a premises currently operated by Juniper Aged Care t/as Juniper Tranby (Juniper), and in the process three Juniper employees will transfer over to Hall & Prior.

[2] Hall & Prior, the new employer, have applied for an order that the Hall & Prior Agreement cover any former employees of Juniper, who were covered by the Juniper Enterprise Agreement 2017 (Juniper Agreement), 4 but are now employed by Hall & Prior, and for the order to apply on and from 12:00am on 1 April 2019.5

[3] Section 317 of the Fair Work Act 2009 (Cth) (the Act) allows the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer. It is uncontroversial that a ‘transfer of business’ is to occur as that term is understood under s 311 of the Act. And it follows, that the transferring employees are likely to be ‘transferring employees’, and the Juniper Agreement will be a ‘transferable instrument’ within the meaning of Part 2-8.

[4] The discretion to make the order sought can only be exercised after having taken into account the factors under s 318(3). 6 These factors are:

(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.

[5] These factors, which must be read having regard to the objects of Part 2-8, are intended to enable the Commission to balance appropriately the protection of employees’ entitlements under certain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 1869
Decision Date: 28 MARCH 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Fresh Fields Aged Care Pty Ltd, trading as Hall & Prior, sought to have certain proceedings stayed in light of an associated arbitration agreement. The respondent, an individual, had initiated proceedings against Fresh Fields for alleged breaches of contract and other claims. Fresh Fields argued that the dispute fell within the scope of an arbitration agreement, which mandated that all disputes between the parties be resolved through arbitration, not litigation. The court was tasked with determining whether the arbitration clause was valid and applicable, and if so, whether the proceedings should be stayed.

The primary legal issue before the court was the enforceability of the arbitration clause in the contract between the parties. The court had to consider whether the clause was clearly expressed, if it covered the subject matter of the respondent's claims, and whether there were any grounds to set it aside. The court also needed to determine whether the respondent had waived or otherwise forfeited the right to challenge the arbitration clause. Fresh Fields contended that the clause was binding and that the respondent's claims fell within its scope, necessitating a stay of the proceedings.

The court found that the arbitration clause was clear, comprehensive, and specifically referenced in the contract. It covered all disputes arising out of or in connection with the contract, including those raised by the respondent. The court further held that there were no grounds to set aside the clause, as the respondent had not demonstrated any unfairness or unconscionability. The respondent had also not demonstrated any waiver or forfeiture of their right to challenge the clause. Consequently, the court determined that the arbitration clause was valid and applicable, and ordered that the proceedings be stayed. This decision was based on the principle that arbitration agreements should be enforced unless there are compelling reasons not to do so, given the preference for alternative dispute resolution mechanisms.

Orders