Illawarra Retirement Trust T/A Illawarra Retirement Facility

[2014] FWC 9141

[2014] FWC 9141

FAIR WORK COMMISSION

DECISION

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

Illawarra Retirement Trust T/A Illawarra Retirement Facility
(AG2014/10686)

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 16 DECEMBER 2014

Application in relation to new employer - transfer of instrument.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Illawarra Retirement Trust (the Applicant) seeking an order from the Fair Work Commission (the Commission) that a transferrable instrument, being the Berala on the Park HR Pty Ltd, NSWNMA & HSU East Branch Enterprise Agreement 2012 (the Berala Agreement) not apply to the Applicant in relation to the employment of the transferring employees. The Applicant makes the application in its capacity as the new employer.

[2] The Applicant has entered into a contract to acquire the business of an aged care facility located in Auburn, NSW called Berala on the Park (Berala).

[3] As part of the acquisition, the Applicant has offered employment to approximately 106 employees of Berala HR and intends for those employees to be covered by the IRT Collective Agreement 2012 (the IRT Agreement).

[4] The Applicant seeks the order of the Commission under s 318 of the Act to avoid the confusion of having two separate enterprise agreements for employees working at the same facility.

[5] The Applicant has identified some differences between the Berala Agreement and the IRT Agreement. In that regard, the Applicant has committed to providing those employees with the higher of either their current rate of pay as provided for by the Berala Agreement or the applicable relevant rate under the IRT Agreement.

[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] I listed this application for a decision on the papers and directed the Applicant to send the listing to all transferring employees who would be affected by this Decision. That listing directs any party who wishes to be heard on this matter to contact chambers by COB 15 December 2015. No transferring employee has contacted chambers with such request.

[8] 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 will issue as sought.

DEPUTY PRESIDENT

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