Healthe Care Australia Pty Ltd

[2015] FWC 3900

[2015] FWC 3900

FAIR WORK COMMISSION

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
(AG2015/2543)

DEPUTY PRESIDENT BOOTH SYDNEY, 17 JUNE 2015

Application in relation to new employer - transfer of employment.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Healthe Care Australia Pty Ltd (the Applicant). The Applicant seeks an order from the Fair Work Commission (the Commission) that the enterprise agreement that currently covers its existing nursing employees, namely, the Healthe Care Pty Ltd (New South Wales Hospitals) and the NSWNMA/ANMF Enterprise Agreement 2014 (Healthe Care Agreement) also cover the transferring nursing employees.

[2] The Applicant makes the application in its capacity as the new employer.

Grounds on which this application is made

[3] The Applicant set out the grounds on which it makes its application.

[4] On 21 July 2014, there was a transfer of business in accordance with section 311(1) of the Act to the Applicant from Healthscope Limited (the old employer) where the Applicant purchased and took over the operations of the Brisbane Waters Private Hospital facility (Brisbane Waters.)

[5] The old employer employed approximately 102 nursing employees at Brisbane Waters and in the transfer of business, the Applicant employed a significant number of those employees, who perform work which is the same or substantially the same as that performed for the old employer. The Applicant is therefore their new employer.

[6] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission:

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.

[7] In relation to section 318(3)(a), the Applicant provided information that it seeks (and has sought) to “standardise its employment conditions, reduce administration costs, promote the transfer of employees across the business and encourage a single workplace culture.” The Applicant indicated that the Brisbane Waters employees represent approximately 6% of the total nursing workforce of the Applicant.

[8] The Applicant sought the views of the new employees who would be affected by the order, by way of secret electronic ballot. Of the 30 employees who voted, 29 employees voted in favour and one voted against the order sought.

[9] In relation to section 318(3)(b), the Applicant provided detailed comparisons of the Healthscope Agreement and the Healthe Care Agreement in relation to both wages and other employment entitlements. I am satisfied that over the life of the Healthe Care Agreement, a majority of the affected employees’ terms and conditions will not be disadvantaged by any order to transfer to the Healthe Care Agreement.

[10] Further to section 318(3)(b), the Applicant made undertakings that:

(a) The Applicant will, where there is no direct translation in classification, preserve the transferring employees’ current rate of pay until such time as the Healthe Care Agreement rates for the most comparable classification is equal to or in excess of the employees’ current rate, at which time the transferring employee will move to the rate and classification under the Healthe Care Agreement.

(b) Where there is a direct translation in classification from one agreement to the other, the Applicant will preserve the transferring employees’ current rate of pay until such time as the Healthe Care Agreement rate is equal to or in excess of the employees’ current rate, at which time the transferring employee will move to the rate and classification under the Healthe Care Agreement.

(c) The Applicant will maintain the current higher rates of lead apron allowance and qualification allowances for incumbent employees until the Healthe Care Agreement rates exceed those currently paid.

(d) The Applicant also noted it has, in relation to employees who would be the subject of an order to transfer, recognised accrued personal leave, annual leave and long service leave; and length of service for the purposes of calculating long service leave.

[11] In relation to section 318(3)(d), the Applicant has made submissions in the application about productivity in the workplace and I am satisfied that no negative impact would arise from the transfer.

[12] In relation to section 318(3)(e), the Applicant noted that there is an economic disadvantage to it in continuing to administer two industrial instruments.

[13] In relation to section 318(3)(f), the Applicant made satisfactory submissions to demonstrate the business synergy between the Healthscope Agreement and the Healthe Care Agreement.

[14] In relation to section 318(3)(g), I conclude that the public interest is not detrimentally affected by this application.

[15] Having read the application and supporting documents, I am satisfied that all the requirements of s.318 of the Act have been met. An order [PR568236] will issue as sought.

DEPUTY PRESIDENT

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