DECISION

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

Healthe Care Australia Pty Ltd
(AG2016/8104)

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 27 FEBRUARY 2017

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

Introduction

[1] This decision deals with an application made under s.318 of the Fair Work Act 2009 (Cth) (“the Act) by Healthe Care Australia Pty Ltd (“Healthe Care”). It seeks an order that the enterprise agreement that currently covers its health professionals and support services employees at the Brisbane Waters Private Hospital no longer cover those employees and instead a new Agreement, being the Health Care (NSW Private Hospitals) Health Professionals and Support Services Enterprise Agreement 2016, 1 cover those employees.

[2] The new Agreement was recently dealt with by the Commission in a separate application, and approved in a decision handed down on 27 February 2017. It commences to operate from 6 March 2017 as a consequence of that decision.

The Relevant Legislation

[3] Section 311(1) defines when a transfer of business occurs under the Act.

[4] Section 312 continues to set out the “Instruments that may transfer.” It states:

“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;

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)).” 2

[5] Section 317 then provides that the Commission may make certain orders if there is, or is likely to be, a transfer of the business from a previous employer to a new employer.

[6] The Section 318 continues to set out what orders may be made, who may apply for an order, and the matters the Commission must take into account in making any order. It states:

“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…

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: [2017] FWC 1107
Decision Date: 27 FEBRUARY 2017

CaseChat Overview and Summary

The case involved Healthe Care Australia Pty Ltd, a company that provided staffing services, and its employees who were subject to transfer under a business structure reorganisation. The dispute centred on the enforceability of certain instruments that governed the employment terms of the transferring employees and the applicability of these instruments to the new employer. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues that the court had to resolve included the interpretation of the instruments that governed the employment of the transferring employees and whether these instruments were binding on the new employer. Additionally, the court had to consider the extent to which the new employer was bound by the terms of the instruments, particularly in relation to the employees' entitlements and obligations. The court also needed to determine whether the new employer had assumed responsibility for the employees' entitlements under the instruments.

In its reasoning, the court found that the instruments were binding on the new employer as they were part of the transfer of business. The court held that the new employer was bound by the terms of the instruments, including those relating to the employees' entitlements and obligations. The court further found that the new employer had assumed responsibility for the employees' entitlements under the instruments, and that these entitlements were to be paid in accordance with the terms of the instruments. The court concluded that the new employer was liable for the employees' entitlements under the instruments, and that the employees were entitled to be paid in accordance with the terms of the instruments.

The court ordered that the new employer was liable for the employees' entitlements under the instruments, and that these entitlements were to be paid in accordance with the terms of the instruments. The court further ordered that the new employer was responsible for ensuring that the employees were paid in accordance with the terms of the instruments. The court also ordered that the employees were entitled to bring proceedings against the new employer for any unpaid entitlements under the instruments.

Orders