Joint Colleges Training Services Pty Ltd
[2024] FWC 1462
•6 JUNE 2024
| [2024] FWC 1462 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
ss.318 and 319 - Application for orders relating to instruments covering new employer, transferring employees and non-transferring employees
Joint Colleges Training Services Pty Ltd
(AG2024/1843)
| COMMISSIONER SIMPSON | BRISBANE, 6 JUNE 2024 |
Application for orders relating to transferable instrument
Joint Colleges Training Services Pty Ltd (the Applicant/JCTS) has lodged an application under ss 318 and 319 of the Fair Work Act 2009 (the FWAct) seeking orders from the Commission.
Background
The Applicant and RACGP / ACRRM
The Applicant, Joint Colleges Training Services Pty Ltd, is a joint venture between the Royal Australian College of General Practitioners (RACGP) and the Australian College of Rural and Remote Medicine (ACRRM). The Applicant enables RACGP and ACRRM to deliver shared general practitioner training activities for their respective fellowship training programs.
RACGP and ACRRM each have a contract with the Commonwealth Department of Health and Aged Care to deliver the Australian General Practice Training program (AGPT Program) across Australia. The AGPT Program is funded by the Australian Government.
Since 1 February 2023, the Applicant has facilitated delivery of the AGPT Program, including the development and delivery of Aboriginal and Torres Strait Islander health strategic plans, cultural education and cultural mentorship, and the provision of registrar housing in remote communities, on behalf of RACGP and ACRRM (Cultural Training and Mentorship). The Applicant directly provides Cultural Training and Mentorship on a national basis.
Services agreement between the Applicant and James Cook University
It was submitted that the Applicant currently subcontracts the facilitation and delivery of Cultural Training and Mentorship in rural, regional and remote Queensland to James Cook University (JCU). JCU currently employs staff to facilitate and deliver Cultural Training and Mentorship in Queensland. This arrangement is governed by a services agreement (JCTS/JCU Services Agreement). On 7 March 2024, JCU gave the Applicant formal notice of its intention to terminate the JCTS/JCU Services Agreement, in accordance with clause 14.3, effective 7 June 2024. The Applicant has accepted JCU's proposed termination of the JCTS/JCU Services Agreement.
From 7 June 2024, the employment of all employees engaged by JCU to facilitate and deliver the Cultural Training and Mentorship will cease. In order to provide Cultural Training and Mentorship in Queensland, the Applicant will employ 4 employees currently employed by JCU in the same function. Employment with the Applicant will commence on 10 June 2024.
The new employees of the Applicant will continue to perform their existing work facilitating and delivering Cultural Training and Mentorship in Queensland (Transferring Employees). Specifically, the 4 roles which will be taken up by the Transferring Employees are as follows:
a. Program Coordinator;
b. Medical Educator;
c. Cultural Educator; and
d. Regional Manager.
The Applicant has offered each Transferring Employee employment on terms and conditions that, when considered on an overall basis, are more favourable than the terms and conditions of the employee's current employment with JCU.
Transfer of business
The Applicant submitted that on 10 June 2024, a transfer of business will occur under s 311 of the FW Act (Transfer) in circumstances where:
a.the Transferring Employees will cease employment with JCU and commence employment with the Applicant immediately;
b.the work of facilitating and delivering Cultural Training and Mentorship in Queensland that the Transferring Employees will perform for the Applicant will be the same, or substantially the same, as the work the Transferring Employees perform for JCU (Transferring Work); and
c.there is a connection between JCU and the Applicant under s 311(5) of the FW Act because the Transferring Work performed by Transferring Employees of JCU was outsourced to JCU by JCTS, and JCTS has now ceased to outsource that work to JCU.
The Transfer is closely related to a transfer which was the subject of a separate application filed by RACGP Training Services Ltd on 21 May 2024 (AG2024/1730), and was determined by Deputy President Colman in [2024] FWC 1434.
Industrial instrument coverage of the Applicant
It was submitted that there is no enterprise agreement which applies to employees employed by the Applicant (JCTS Employees). JCTS Employees comprise:
a.employees performing clerical or administrative roles that fall within the classifications covered by the Clerks - Private Sector Award 2020 (Clerks Award); and
b.other employees who are not covered by a modern award.
Enterprise agreement coverage following the Transfer
Transferring Employees
The JCU Agreement currently covers and applies to the Transferring Employees. The JCU Agreement is a transferable instrument in respect of the Transferring Employees as defined by s 312(1) of the FW Act.
As a result of the Transfer, the JCU Agreement (operating as a transferable instrument) will cover and apply to the Applicant and Transferring Employees, in relation to the Transferring Work (s 313 of the FW Act).
Non-Transferring Employees
In addition to the Transferring Employees, the Applicant will employ new employees (being persons who commence employment after the Transfer) to perform the Transferring Work (Non-Transferring Employees).
Accordingly, in the absence of the Proposed Orders, it was submitted the default position under the FW Act following the Transfer would be as follows:
a.Non-Transferring Employees employed as a Project Coordinator will be covered by the Clerks Award, so would not be covered by the JCU Agreement. This is because the Project Coordinator role is a clerical or administrative role that falls within the classifications of the Clerks Award (section 314(1) of the FW Act); and
b.Non-Transferring Employees employed to perform the other three transferring roles (Medical Educator, Cultural Educator and Regional Manager) would be covered by the JCU Agreement. This is because no other enterprise agreement or modern award would cover the Applicant and these employees in relation to the Transferring Work.
Proposed Orders
The Applicant is seeking the Proposed Orders so that the Transferring Employees can be employed on terms and conditions which are consistent with the JCTS employees, already employed in similar roles in JCTS. The effect of the Proposed Orders is that the JCU Agreement will not cover any Transferring Employees or Non-Transferring Employees, and the Transferring Employees and Non- Transferring Employees will be covered by the Clerks Award (Project Coordinator) or common law arrangements (Medical Educator, Cultural Educator and Regional Manager) consistent with JCTS Employees employed by the Applicant to facilitate and deliver Cultural Training and Mentorship.
Framework
Section 318(1) of the Act provides that the Commission may, on application by a person or organisation identified in s 318(2), 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.”
Section 319(1) provides that the Commission 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.”
In deciding whether to make an order under s 318(1) or s 319(1), the Commission must take into account the matters in ss 318(3) and 319(3) respectively, which I now do.
Views of the new employer
The Applicant supports the Application and Proposed Orders. The Applicant submitted that there should be no enterprise agreement that covers Transferring Employees and Non-Transferring Employees, consistent with the framework covering JCTS Employees.
The Applicant wishes to ensure that Transferring Employees and Non-Transferring Employees are engaged on the standard JCTS terms and conditions which are overall more favourable than the terms contained in the JCU Agreement.
The Applicant submitted that applying the current practice of the Applicant to Transferring Employees will encourage a single and harmonious workplace culture, promote consistency and certainty in the employment terms and conditions of employees, and enhance productivity and efficiency in the workplace.
The Applicant also wishes to avoid the practical difficulties and potential unfairness associated with applying two different sets of terms and conditions to employees performing the same, or substantially the same, work.
Views of employees affected by the order
A detailed explanation of the consultation process undertaken with Transferring Employees is outlined in the witness statement of Daniel Harvey which was submitted with the Application. Following consultation, 100% of employees expressed support for the Application.
As at the date of the Application, the Applicant has not made any offers to Non-Transferring Employees. Accordingly, the Applicant is not currently able to ascertain the specific views of new Non-Transferring Employees about this Application.
It was submitted that RACGP consulted with the National Tertiary Education Union (NTEU) in relation to a separate but closely related application filed by RACGP Training Services Ltd (AG2024/1730). The Applicant also sought the views of the NTEU in relation to this Application. However, the Applicant submitted that in circumstances where the NTEU does not have members employed at JCTS, the NTEU confirmed that it did not propose to express any view about the Application.
Whether any employees would be disadvantaged by the order
The Applicant submitted that no employees would be disadvantaged in their overall terms and conditions of employment if the Proposed Orders are granted. This was corroborated in the witness statement of Daniel Harvey.
Nominal expiry date of JCU Agreement
The JCU Agreement has a nominal expiry date of 31 December 2025.
Whether Agreement would have a negative impact on productivity
The Applicant submitted there will not be a negative impact on productivity at the Applicant's workplace if the Proposed Orders are made.
It was also submitted that on the other hand, there may be a negative impact on productivity if the Proposed Orders are not made, as two different populations of employees would be performing the Transferring Work under different terms and conditions of employment.
Whether the new employer would incur significant economic disadvantage
The Applicant submitted that this should be treated as a neutral factor.
The degree of business synergy
The Applicant submitted there are a number of differences between the terms and conditions of employment under the JCU Agreement and the JCTS standard terms and conditions, such that there would be a risk of industrial disharmony if the JCU Agreement were to apply to Transferring Employees and the JCTS standard terms and conditions were to apply to JCTS Employees, where employees are performing the same, or substantially the same, work.
Public interest
The Applicant submitted there are no adverse public interest considerations in making the orders sought and granting the Proposed Orders sought by the Applicant would provide consistency in relation to employment terms and conditions.
Conclusion
Taking into account the matters in ss 318(3) and 319(3), I have decided that it is appropriate to grant the application. An order will be issued separately in PR775675.
COMMISSIONER
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