Independent Living Assessment Incorporated T/A Independent Living Assessment

[2020] FWC 3725

[2020] FWC 3725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Independent Living Assessment Incorporated T/A Independent Living Assessment
(AG2020/1835)

INDEPENDENT LIVING CENTRE OF WA INC ENTERPRISE AGREEMENT 2019
(AG2019/3418)  [AE505957]

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 16 JULY 2020

Transferable instrument.

[1] This is an application, pursuant to section 319 of the Fair Work Act 2009 (the Act) made by Independent Living Assessment Incorporated T/A Independent Living Assessment (the Applicant) which seeks orders from the Commission that the Independent Living Centre of WA Inc Enterprise Agreement 2019 (the Agreement) will cover non-transferring employees who perform, or are likely to perform, transferring work covered by the Agreement.

[2] Section 319 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:

“319  Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

Background

[3] The Applicant asserts that there has been a transfer of business from Indigo Australasia Incorporated (formerly Independent Living Centre of WA Incorporated) (the old employer) to Independent Living Assessment Incorporated T/A Independent Living Assessment (the new employer). The transferring work performed for the new employer is the same, or substantially the same, as the work the employee performed for the old employer.

[4] The Applicant advises there are not currently any non-transferring employees.

Consideration

[5] The view of the Applicant is that the Commission should make the orders sought.

[6] The views of the employees who would be affected by the order are not known as no such employees have been engaged yet.

[7] I am satisfied that the employees affected would not be disadvantaged by the order in relation to their terms and conditions of employment.

[8] The nominal expiry date of the Agreement is 15 November 2021 meaning it has quite some time to run.

[9] I accept the submission that the transferable instrument would not have a negative impact on the productivity of the new employer’s workplace and that the new employer would not incur economic disadvantage as a result of the transferable instrument covering the new employer.

[10] There apparently is no workplace instrument that already covers the new employer for this work.

[11] There is nothing to suggest the order sought is contrary to the public interest.

[12] Taking in to account the matters to be considered in section 319(3) of the Act, based on the material provided in the application I am satisfied that it is appropriate that this application be granted and an order [PR721022] to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE505957  PR721022 >