HBF Health Limited T/A HBF

Case •

[2023] FWC 1182

•

26 MAY 2023
[2023] FWC 1182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

HBF Health Limited T/A HBF

(AG2023/1189)

Banking finance and insurance industry

COMMISSIONER HUNT

BRISBANE, 26 MAY 2023

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

  1. On 26 April 2023, HBF Health Limited T/A HBF (the Applicant) made an application to the Fair Work Commission (the Commission) for an order pursuant to s.318(1)(a) of the Fair Work Act 2009 (the Act) that the Queensland Country Bank Ltd Enterprise Agreement 2022 (QCB Agreement) will not cover the Applicant and transferring employees from an old employer.

  1. The Applicant is covered by the HBF Enterprise Agreement 2021 (HBF Agreement).

  1. The Applicant is likely to be the new employer of employees currently employed by Queensland Country Bank Limited (QCB) and covered by the QCB Agreement.  The Applicant also seeks an order pursuant to s.318(1)(b) of the Act that the HBF Agreement will cover transferring employees when they commence employment with the Applicant.

Transfer of business

  1. Section 311 of the Act sets out when a transfer of business occurs:

“311      When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1)       There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a)       the employment of an employee of the old employer has terminated;

(b)       within 3 months after the termination, the employee becomes employed by the new employer;

(c)       the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d)       there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2)       An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3)       There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a)       the old employer or an associated entity of the old employer; and

(b)       the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c)       that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d)       that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4)       There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5)       There is a connection between the old employer and the new employer if:

(a)       the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b)       the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6)       There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.”

Transferable instrument

  1. Section 312 of the Act details instruments that may transfer:

“312      Instruments that may transfer

Meaning of transferable instrument

(1)       Each of the following is a transferable instrument:

(a)       an enterprise agreement that has been approved by the FWC;

(b)       a workplace determination;

(c)       a named employer award.

Meaning of named employer award

(2)       Each of the following is a named employer award:

(a)       a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b)       a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note:  Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

  1. The QCB Agreement is an enterprise agreement. The QCB Agreement is therefore a transferable instrument within the meaning of s.312(1)(a) of the Act.

Relevant legislation

  1. The application seeks for the Commission to make an order under s.318 of the Act, which is set out below:

“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.”

Witness statement

  1. Mr Matthew Rainbow, General Manager People Services of the Applicant made a witness statement detailing the following:

·  The Applicant, through its wholly-owned subsidiary HBF Wellness Holdings Pty Ltd, has signed an agreement to acquire Queensland Country Health Fund Limited (QCHF) from QCB.

·  The employees engaged in the business of QCHF are employed by QCB. The Applicant has made offers of employment to all of those employees, including offering permanent ongoing roles with the Applicant to employees of QCHF currently engaged on a fixed-term basis.

·  As at the date of the application, 43 employees (out of a total of 50 employees) currently covered by the QCB Agreement have accepted the Applicant’s offer. In this application, those employees who have received offers are collectively referred to as the “Transferring Employees”.

·  Whilst employed by QCB, the Transferring Employees’ employment is covered by the QCB Agreement. Pursuant to ss.311 and 312 of the Act, upon commencing their employment with the Applicant, there will be a transfer of business, and the QCB Agreement will become the transferable instrument that will apply to the Applicant and the Transferring Employees.

·  The Applicant seeks orders that:

·  the QCB Agreement will not cover the Applicant and the Transferring Employees; and

·  the HBF Agreement will cover the Transferring Employees who fall within its scope.

·  The Applicant respectfully requests the orders be made before the expected commencement date of the relevant employees of 1 July 2023.

The views of the Applicant

  1. The Applicant’s view is that the QCB Agreement should not transfer, and the Transferring Employees should instead be covered by the HBF Agreement, for the following reasons:

·  it is desirable that the industrial arrangements of all of the Applicant’s employees should, as much as possible, be standardised and consistent. The Applicant believes that the combined workforce will thereby enjoy a harmonious, single workplace culture;

·  existing employees of the Applicant who are employed in roles of the same classification as the Transferring Employees, are covered by the HBF Agreement, which provides more beneficial conditions overall than the QCB Agreement. The Applicant seeks to minimise any actual or perceived inequity that would result from inconsistent terms and conditions of employment applying to employees who perform the same or similar roles;

·  the HBF Agreement is an instrument negotiated and tailored to the Applicant and its operations, and is the most appropriate instrument to apply to employees of the Applicant; and

·  the Applicant wishes to minimise the financial costs and operational difficulties associated with implementing and managing two separate enterprise agreements where there is not a compelling reason to do so. The practical consequences of retaining coverage by the QCB Agreement include, without limitation, reconfiguration of the Applicant’s payroll and rostering system.

The views of the employees who would be affected by the order

  1. The Applicant has sought the Transferring Employees’ informed support by:

·  holding one-on-one consultation sessions where this application was discussed and the differences between the QCB Agreement and the HBF Agreement were identified and explained; and

·  providing the Transferring Employees with relevant documentation, including the Agreements, an explanatory PowerPoint Presentation, the Applicant’s policies and a memorandum of frequently asked questions.

  1. The Applicant made its offers of employment setting out the various terms and conditions of the QCB Agreement, to which they would remain entitled. This was also explained at employee information sessions. If employees wished to accept employment with the Applicant but did not support the orders sought in this application, they were invited to raise this with Mr Rainbow.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

  1. The Applicant submitted that there will be no disadvantage in terms and conditions of employment overall should the orders sought be made. It was submitted the relevant employees will receive more beneficial terms and conditions overall if the orders were made.

  1. The Applicant submitted that the HBF Agreement contains the following entitlements which are more beneficial than those available under the QCB Agreement:

·  Weekly hours: The average hours of work for full time employees is higher under the QCB Agreement (38 hours as opposed to 37.5 hours), meaning that overtime is triggered earlier in the HBF Agreement compared to the QCB Agreement;

·  Overtime rates: The HBF Agreement provides a higher overtime rate for overtime worked Monday to Saturday than under the QCB Agreement (150% is paid for the first2 hours under the HBF Agreement whereas it is for the first 3 hours in the QCB Agreement, before the penalty moves to 200%);

·  TOIL: TOIL under clause 10.7 of the HBF Agreement is more beneficial than under the QCB Agreement because it is offered in line with the overtime rate (whereas the QCB Agreement offers TOIL on an hour for hour basis);

·  Minimum engagement for recall: Overtime becomes payable for a minimum period of 4 hours when an employee is recalled to work under the HBF Agreement;

·  Emergency warden allowance: Employees receive an emergency warden allowance if they are appointed an accredited emergency warden under the HBF Agreement;

·  Allowances: There are more favourable allowances in the HBF Agreement and potential for a higher payment for the higher duties allowance;

·  Redundancy pay: The redundancy payments provided under the HBF Agreement are generally more beneficial than those provided under the QCB Agreement;

·  Personal leave: Employees receive 13 days of personal leave under the HBF Agreement, compared to 10 days under the QCB Agreement;

·  Insurance: Employees will receive a higher discount on insurance premiums under clause 16.5 of the HBF Agreement. The subsidised HBF private health insurance is provided in the Corporate Gold Hospital Cover for HBF Group Guideline;

·  Jury service leave: Employees will receive payment for each day of jury duty or attending as a witness, under clause 24.2 of the HBF Agreement;

·  Study leave: Employees can receive 2 days of leave for study purposes per unit of study (up to a maximum of 8 days) under clause 16.9 of the HBF Agreement (whereas the QCB Agreement provides 1 day per subject up to a maximum of 4 days);

·  Domestic violence leave: Employees can receive up to 20 days of paid leave for domestic violence reasons under clause 19 of the HBF Agreement (whereas it is 10 days under the QCB Agreement);

·  Community service leave: Employees will receive paid community service leave under clause 24.3 of the HBF Agreement (whereas the QCB Agreement provides unpaid leave in accordance with the National Employment Standards);

·  Paid parental leave: 14 weeks of parental leave is available to both parents, foster care leave and the right to take paid parental leave where there is a stillbirth or miscarriage;

·  10-hour rest break: A 10-hour rest break between the work of successive days, without loss of pay, where an employee works overtime;

·  Long service leave: For Transferring Employees employed with a commencement date prior to 1 November 2018, a more favourable long service leave entitlement, being 13weeks after 10 years;

·  Blood donation leave: Employees will receive up to 2 hours of paid blood donation leave under clause 24.7 of the HBF Agreement; and

·  Defence forces leave: Employees will receive up to 10 days of paid defence force leave each 12 months under clause 24.4 of the HBF Agreement.

  1. The Applicant considers that there are some entitlements under the QCB Agreement which are materially more beneficial for the employees compared to those under the HBF Agreement. The Applicant has dealt with these differences by grandfathering these entitlements into the Transferring Employees’ Letters of Offer. These include:

·  Study assistance: The QCB Agreement at clause 2.11 provides for a 100% reimbursement of up to four subjects per anniversary year for non-compulsory training. The Applicant will continue to provide Transferring Employees this entitlement until the nominal expiry date of the QCB Agreement;

·  Redundancies: The QCB Agreement at clause 2.3 provides more beneficial payments for redundancies taken at 3 and 4 years of continuous service. The Applicant has guaranteed that Transferring Employees will receive the more beneficial redundancy payment under the QCB Agreement if their period of continuous service is 3 or 4 years and their position is made redundant;

·  Increases to base salary: The QCB Agreement contains guaranteed annual salary increases until its nominal expiry date. The Applicant has guaranteed that any salary increases on the Transferring Employees’ base salary in their contract will be no less than what they would otherwise be entitled to be paid as at 1 July 2023, 1 July 2024and 1 July 2025 under the QCB Agreement. The Applicant notes, however, that the HBF Agreement links annual pay increases to CPI and, consequently, it may be that the Transferring Employees will be entitled to higher pay annual increases under the HBF Agreement than under the QCB Agreement (see clause 13.3 of the HBF Agreement);

·  Remote area relocation allowances: The QCB Agreement at clause 3.6 provides for a fortnightly remote area retention allowance that is paid to employees who work in Mount Isa, Weipa and Collinsville. The Applicant will continue to pay Transferring Employees who currently qualify for this allowance until they no longer work in the remote area;

·  Superannuation on workers compensation payments and Government funded parental leave: The QCB Agreement at clause 3.12 provides an additional entitlement to superannuation on certain workers compensation payments, paid leave (excluding parental leave for secondary carers) and up to six weeks of Government funded paid parental leave for primary carers. HBF already pays superannuation on paid leave other than Government funded parental leave payments. The Applicant has guaranteed that Transferring Employees will continue to receive the same superannuation entitlement they receive under the QCB Agreement;

·  Minimum engagement for overtime hours on Saturday and Sunday: The QCB Agreement at clause 4.3 provides a minimum engagement of 2 hours for overtime hours on Saturday and Sunday. The Applicant has matched the more beneficial minimum engagement provision in the QCB Agreement in the Letters of Offer;

·  Annual leave: The QCB Agreement at clause 5.1 provides for 5 weeks of annual leave. HBF has guaranteed that Transferring Employees will have the option to salary sacrifice in return for receiving an additional week of annual leave. The Transferring Employees’ base salary has also been increased to compensate for the value of the additional week of annual leave;

·  Annual leave loading: The QCB Agreement at clause 5.1 provides for an annual leave loading of 17.5%. The Applicant will make payments to Transferring Employees in the first pay period of each financial year to compensate for the annual leave loading the employee would have received in that year under the QCB Agreement;

·  Minimum engagement for public holidays: The QCB Agreement at clause 5.2 provides a minimum engagement of 4 hours for work on public holiday. The Applicant has matched the more beneficial minimum engagement provision in the QCB Agreement;

·  Long service leave: The QCB Agreement at clause 5.7 provides an entitlement to 7 weeks of long service leave after 7 years of continuous service, with the entitlement increasing by one week for each year of service thereafter. The entitlement is more beneficial than the HBF Agreement only in relation to Transferring Employees who were employed after 1 November 2018. The Applicant has guaranteed that Transferring Employees will receive the more beneficial long service leave entitlement available under the QCB Agreement if they were employed on or after 1 November 2018;

·  The wellness program payment: The QCB Agreement at clause 6.4 provides for a “Wellness Program”, through which employees can be reimbursed up to $200 per year for participating in recognised health-related programs. The Applicant will pay Transferring Employees $200 in lieu of the wellness program; and

·  The sick leave safety net benefit: The QCB Agreement at clause 5.4 provides for a “Sick Leave Safety Net”, through which employees who cannot attend work due to genuine significant or long term personal injury or illness and who have used all accumulated personal leave can apply to access additional days of sick leave. The Applicant has incorporated this safety net on the same terms into the Letter of Offer.

  1. For other entitlements under the QCB Agreement which are more beneficial than those available under the HBF Agreement, the Applicant has taken steps outside of the Letter of Offer to ensure that Transferring Employees are not disadvantaged.

  1. The Applicant submitted that the following entitlements under the QCB Agreement are marginally more advantageous but are offset by more favourable entitlements in the HBF Agreement:

·  Higher duties allowance: The QCB Agreement provides at clause 3.7 that an employee is entitled to be paid the ordinary time hourly wage rate for a higher classification if performing the higher duties of that classification for a period of 4 days or more. Under the HBF Agreement at clause 16.4, a higher duties allowance is only paid if the employee undertakes the higher duties for a period of 5 days or more. However, the benefit under the QCB Agreement is offset by the fact that the higher duties allowance under the HBF Agreement has the potential to be higher than under the QCB Agreement. Clause 16.4 of the HBF Agreement provides that the allowance will be the greater amount of 8% of the employee’s current base salary, and the difference between the employee’s current base salary and the base salary for the higher position;

·  Travel and accommodation expenses: The QCB Agreement provides at clause 3.9 that, in addition to travel and accommodation expenses, employees are entitled to receive a $50 allowance if they stay in private accommodation. This entitlement is not available under the HBF Agreement. However, this benefit is offset by the reimbursement Transferring Employees will receive under the HBF Agreement at clause 16.6 for return journeys home where they finish work after 9pm;

·  Meal breaks: The QCB Agreement at clause 4.5 provides for different meal breaks compared to the HBF Agreement at clause 8.2. On net, the QCB Agreement provides a more beneficial meal break because it allows for longer paid and unpaid meal breaks (up to 20 minutes of paid rest break and up to 1 hour of unpaid meal break). HBF will allow Transferring Employees to choose to take a 1 hour unpaid break. It is submitted that the remaining difference is minimal and is offset by other more beneficial terms under the HBF Agreement, such as additional leave entitlements;

·  Meal allowance: The overtime meal allowance applies to overtime extending beyond 6pm in the QCB Agreement compared to 7pm in the HBF Agreement. It is submitted that this is offset by the higher meal allowance value in the HBF Agreement compared to the QCB Agreement;

·  Compassionate leave: The QCB Agreement provides at clause 5.5 that employees are entitled to up to two days of paid compassionate leave if a member of the employee’s immediate family or household suffers a life-threatening illness or injury and five days if there is a death (in the same group). The HBF Agreement at clause 20 provides that employees are entitled to up to three days of paid compassionate leave for both serious illnesses and injuries and death (in the same group). Clause 20 of the HBF Agreement also provides that an employee may take a further three days of compassionate leave or access accrued personal leave in exceptional circumstances. It is submitted that on balance, the entitlements are equivalent, but any shortfall under the HBF Agreement is offset by the additional days of personal leave (called wellness days) which are available under clause 18.7 of the HBF Agreement;

·  Natural disaster leave: The QCB Agreement provides at clause 5.8 that an employee is entitled to two days of paid natural disaster leave per event. There is no equivalent provision in the HBF Agreement. The difference is offset by the fact that Transferring Employees can continue to take this leave by using their HBF wellness days, which are available under clause 18.7 of the HBF Agreement; and

·  Birthday leave: The QCB Agreement provides at clause 5.13 that employees may take a day agreed with their manager as birthday leave. There is no equivalent provision in the HBF Agreement. HBF will allow Transferring Employees to take one of their three HBF wellness days (which are available pursuant to clause 18.7 of the HBF Agreement) for birthday leave reasons. HBF does not request documentation for wellness day requests and does not monitor the purposes for which they are taken. Additionally, if wellness leave is not used in a year, it is accrued as personal leave in the following year and is therefore a more beneficial form of leave than that provided under the QCB Agreement.

  1. Finally, the Applicant submitted that a small number of allowances and overtime entitlements which are more beneficial under the QCB Agreement will not apply to the Transferring Employees based on the future work patterns that are reasonably foreseeable once they commence employment with the Applicant.

  1. The Applicant therefore submitted that the Transferring Employees would overall receive more beneficial terms and conditions under the HBF Agreement.

The nominal expiry dates of the enterprise agreements

  1. The nominal expiry date of the QCB Agreement is 30 September 2025, and the HBF Agreement is 25 November 2024.

  1. The Applicant acknowledges that the Transferring Employees will have certainty as to their terms and conditions of employment (as governed by the QCB Agreement) for 10 months longer than if they were covered by the HBF Agreement. However, both agreements are in operation and Transferring Employees will have certainty as to their employment terms and conditions under the HBF Agreement for at least 16 months after becoming employed by the Applicant. It is submitted that the relevant employees will receive more beneficial terms and conditions overall under the HBF Agreement (as outlined above) and will have the opportunity to bargain for new terms and conditions at an earlier time once the HBF Agreement passes its nominal expiry date.

  1. Further, the Applicant submitted that the fact that the QCB Agreement has a nominal expiry date of 30 September 2025, 26 months after the employees become employed by the Applicant, is a factor which weighs in favour of making the order given the disadvantage to the Applicant as a result of the transfer of the instrument (as discussed further below).

Whether the QCB Agreement would have a negative impact on the productivity of the Applicant’s workplace

  1. The Applicant submitted that the QCB Agreement would negatively impact the productivity of the Applicant’s business, particularly in the following ways:

·  payroll complexity and other administrative issues would result from the requirement to administer the QCB Agreement. The Applicant would incur substantial costs and expend significant resources in reconfiguring its payroll system to accommodate the QCB Agreement, and training payroll staff in administering this arrangement; and

·  the differences in terms and conditions may lead to detrimental morale issues. This would decrease productivity and cause unnecessary disruption within the Applicant’s business.

Whether the Applicant would incur significant economic disadvantage as a result of the QCB Agreement covering the Applicant

  1. The Applicant submitted that it would incur additional financial expense resulting from:

·  the implementation and administration of the QCB Agreement;

·  the reconfiguration of its payroll system to accommodate the QCB Agreement; and

·  additional training for the Applicant’s managers and staff to ensure compliance with the QCB Agreement.

The degree of business synergy between the HBF Agreement and the QCB Agreement

  1. The Applicant submitted that there is no business synergy between the HBF Agreement and the QCB Agreement.

  1. Whilst the Applicant has ensured that entitlements it has offered to employees are equivalent or more favourable than the QCB Agreement, there are marked differences when the agreements are compared. As an example, there are differences in the types and terms of allowances.

  1. The classifications of the employees are also markedly different between the agreements. Further, the entitlements in relation to long service leave and personal leave would create a great administrative burden due to the differing amounts and thresholds set out in the agreements.

The public interest

  1. The Applicant submits that to grant the order would be in the public interest on the basis that it would reduce the complexity of the Applicant’s employment arrangements and support the efficient and effective operation of the Applicant’s business.

  1. The Applicant consulted with the Australian Municipal, Administrative, Clerical and Services Union (ASU) on the application and provided it with drafts of this application and the witness statement of Mr Rainbow. On 21 April 2023, a representative of the ASU emailed the Applicant confirming the ASU does not oppose this application.

  1. The Applicant is not aware of any opposition to this application.

Employee and union views

  1. On 4 May 2023, I issued correspondence to the Applicant which I directed to be forwarded to employees who would be affected by the orders sought. The correspondence outlined s.318 of the Act. I indicated that any employee who wished to provide their views as to the application, and the likely effect of the orders being made, had until 17 May 2023 to do so. No views were provided.

  1. On 19 May 2023, I forwarded my correspondence of 4 May 2023 to the Australian Municipal, Administration, Clerical and Services Union (ASU), inviting the ASU to provide its views to the application, and the likely effect of the orders being made. The same day, the ASU corresponded that it had been consulted with as part of Applicant’s acquisition of QCHF, and stated that it had no objection to the orders being made. 

Consideration

  1. On the evidence before me, I am satisfied that there will be a transfer of business within the meaning of ss.311(1)(a)-(d) of the Act when employees of QCB commence employment with HBF on 1 July 2023.

  1. I am satisfied that the work of the employees is transferring work within the meaning of s.311(1)(c) in that employees of QCB have been offered employment with the same, or substantially the same work the employee performed for QCB.

  1. Pursuant to s.311(3) of the Act, and for the purposes of s.311(1)(d) of the Act, there is a connection between QCB and HBF because HBF will take over operational control of QCB. I am satisfied this meets the requirements of s.311(3) of the Act.

  1. I am satisfied that employees from QCB who take up employment in the same or substantially the same role with HBF will be transferring employees for the purpose of s.311(2) of the Act.

  1. The application has been made by HBF. HBF is likely to be the new employer of employees who are likely to be transferring employees. The requirements of s.318(2) have therefore been met.

Section 318(3)(a) – the views of the new employer and the employees who would be affected by the order

  1. The likely new employer is HBF, the applicant seeking an order under s.318 that the QCB Agreement not cover the new employer and transferring employees. Naturally, it supports making the order sought.

  1. As I earlier noted, I directed the Applicant to forward correspondence to affected employees, inviting them to provide any views they had to my Chambers, if they wished to do so. I also invited any further views held by ASU relevant to this application.

  1. Having regard to the submissions and evidence provided above by the Applicant and the views of ASU, this consideration weighs in favour of making the order sought.

Section 318(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

  1. Having taken into account the detailed evidence of Mr Rainbow, I am satisfied that, overall, transferring employees would not be disadvantaged by the order sought. This consideration weighs in favour of making the order sought. I also note that the Applicant has contractually agreed to grandfather a number of entitlements paid to transferring employees upon commencement with the Applicant.   

Section 318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement

  1. The nominal expiry date of the QCB Agreement is 30 September 2025, whereas the nominal expiry date of the HBF Agreement is 25 November 2024.  If the order is made, transferring employees will be covered by the HBF Agreement and in a position to seek renegotiation of the HBF Agreement approximately 16 months after they become employed. 

  1. This consideration weighs somewhat in favour of making the order sought.

Section 318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

  1. The Applicant has made submissions regarding this matter, which are outlined above. I consider the matters raised by Mr Rainbow regarding the burden of applying multiple industrial instruments to be an avoidable and unnecessary burden on the Applicant.  

  1. This consideration weighs in favour of making the order sought.

Section 318(3)(e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

  1. The Applicant has referred to the economic impact of increased operational costs if required to continue to apply the QCB Agreement, including the following:

·  training and resourcing costs associated with educating management on how and when to implement the terms of the QCB Agreement rather than those of the HBF Agreement. These costs would include the training of staff to administer the QCB Agreement;

·  additional administrative resources needed to manage payroll processing and other issues; and

·  costs associated with tailoring the Transferring Employees' rostering and other arrangements to ensure compliance with the terms of the QCB Agreement, in circumstances where all of HBF's operating, payroll and roster systems are configured to comply with the HBF Agreement only.

  1. I accept the Applicant’s evidence on this issue.  This consideration weighs in favour of making the order sought.

Section 318(3)(f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer.

  1. As to this factor, the Applicant has stated that the terms and conditions of the QCB Agreement are inconsistent with the terms and conditions of the HBF Agreement and the operational requirements of HBF's business.

  1. I accept the Applicant’s evidence on this issue.  This factor weighs in favour of making the order sought.

Section 318(3)(g) - the public interest

  1. I am satisfied that making the order would not be contrary to the public interest. This consideration weighs in favour of making the order sought.

Conclusion

  1. Having considered the application and having taken into account each of the matters set out in s.318(3) of the Act, I am satisfied that it is appropriate to make the orders sought.

  1. In making the order sought under s.318, the Applicant will not become covered by the QCB Agreement by virtue of employing employees from QCB as transferring employees.  Transferring employees will be covered by the HBF Agreement upon employment commencing.  

  1. Having regard to s.318(4) of the Act, the order must not come into operation before the later of the time when the transferring employee becomes employed by the new employer or the date on which the order is made.

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