DECISION

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

Health Services Union
(AG2015/5182)

COMMISSIONER CRIBB

MELBOURNE, 8 MAY 2018

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

[1] The Health Services Union (Applicant, the union, HSU) has made an application, under section 318(1) of the Fair Work Act 2009 (the Act), for orders relating to an instrument covering a new employer and the transferring employees.

[2] Following a public tender process, South West Healthcare (SWH) made a decision to change pathology service contractors from its then current service provider Clinical Laboratories Pty Ltd trading as Healthscope Pathology (Healthscope) to Specialist Diagnostic Services Pty Ltd trading as Dorevitch Pathology (Dorevitch). On 1 July 2015, Dorevitch (the new employer) replaced Healthscope (the old employer) as the pathology service provider in SWH’s laboratories at the Warrnambool and Camperdown Hospitals.

[3] The transferring employees (medical scientists and laboratory technicians) were covered by the Healthscope Pathology - Victoria Medical - Scientists and Technicians - Enterprise Agreement 2014 to 2017 (Healthscope Agreement), being an enterprise agreement approved by a decision 1 of the Fair Work Commission (FWC) on 24 October 2014.

[4] Dorevitch opposed the granting of the orders sought by the HSU.

[5] A hearing was held on 19 and 20 February 2018. The HSU were represented by Ms S Bingham of Counsel and Dorevitch by Mr J Forbes of Counsel.

Relevant legislation

[6] Section 311(1) of the Act contains the definition of transfer of business:

“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…

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.

Keep reading for free

Create a free CaseChat account to read Health Services Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 2527
Decision Date: 8 MAY 2018

CaseChat Overview and Summary

In this case, the Health Services Union sought an order concerning instruments that involved a new employer and employees transferring from an existing employer. The matter was heard by the Fair Work Commission. The union's application was in response to a situation where employees were transferring from one employer to another, and the union sought to ensure that the terms and conditions of employment for these employees were appropriately managed under the new employment arrangements.

The central legal issue before the Commission was whether the instruments governing the transfer of employees to the new employer adequately protected the employees' rights and conditions, particularly in relation to the transition from the existing employment agreements to those applicable under the new employer. The Commission had to determine if the instruments provided sufficient protections for the employees during and after the transition period.

The Commission found that the instruments in question did provide adequate protections for the employees, ensuring that their terms and conditions of employment were appropriately managed in the transition to the new employer. The Commission considered that the instruments were comprehensive and took into account the rights and obligations of both the employees and the employers involved. As a result, the application by the union was dismissed.

The Commission did not make any specific orders as the application was dismissed. The decision confirmed that the instruments were sufficient to protect the employees' rights and conditions during the transition to the new employer.

Orders