Life Without Barriers T/A Life Without Barriers - [2023] FWC 3193

[2023] FWC 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Life Without Barriers T/A Life Without Barriers

(AG2023/4469)

Social, community, home care and disability services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 1 DECEMBER 2023

Application for an order under s 318 of the Fair Work Act 2009 (Cth)

Introduction and background

Life Without Barriers (LWB) is a not-for-profit employing entity which provides disability and community support services across Australia, including therapeutic residential care services for children and young people with or without disability.

LWB is contracted by the New South Wales Department of Communities & Justice (DCJ) to deliver intensive therapeutic care in a number of regions across New South Wales. Where the DCJ engages LWB to provide intensive therapeutic care services LWB receives funding from the DCJ. That funding is aligned to the Social, Community, Home Care and Disability Services Industry Award (SCHADS Award).

All LWB’s intensive therapeutic care workers are covered by, and employed on terms and conditions of employment consistent with, the SCHADS Award.

Bright Now is a not-for-profit organisation dedicated to providing residential care for between 30 to 40 children and young people in the Lake Macquarie and Newcastle regions. Bright Now made the decision to cease operations with effect from 8 November 2023. As a result, Bright Now has closed approximately 26 residential care homes and terminated its employees on the ground of redundancy. In light of Bright Now’s decision to cease operations, it returned the care of the children residing in its residential care homes to the DCJ effective 8 November 2023.

The DCJ requested LWB to establish a new residential intensive therapeutic care service in the Lake Macquarie and Newcastle region and assume responsibility for providing residential care for 16 of the children and young people formerly cared for by Bright Now. LWB has accepted this proposal. As a result, LWB will be responsible for operating seven intensive therapeutic care homes, and one crisis care home. Six of those care homes were previously operated by Bright Now.

To satisfy the DCJ service arrangements for the care homes, LWB has been required to employ more than 100 additional staff to service the care homes. In order to recruit employees for these roles, LWB opened the available positions to the general market, as well as former Bright Now employees. LWB applied its usual screening and verification checks.

LWB has now employed 97 former Bright Now employees and is undertaking probity checks for a further 6 former Bright Now employees.

About 43% of the former Bright Now employees were covered by the Premier Youthworks Pty Limited Residential Care Worker Agreement 2016 (Bright Now EA) and the remaining 57% were covered by the SCHADS Award. The reason only some former Bright Now employees were covered by the Bright Now EA is because that instrument transferred to Bright Now from Premier Youthworks Pty Limited when that…

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: [2023] FWC 3193
Decision Date: 1 DECEMBER 2023

CaseChat Overview and Summary

Life Without Barriers (LWB) sought an order from the Fair Work Commission under section 318 of the Fair Work Act 2009 (Cth) that the Premier Youthworks Pty Limited Residential Care Worker Agreement 2016 (Bright Now EA) would not apply to LWB and the former employees of Bright Now. Bright Now, a not-for-profit organisation providing residential care for children and young people, ceased operations and transferred the care of its residents to the New South Wales Department of Communities & Justice (DCJ). LWB, contracted by DCJ to deliver intensive therapeutic care, assumed responsibility for 16 of Bright Now’s former residents, employing over 100 additional staff, including 97 former Bright Now employees. LWB sought the order to avoid the application of the Bright Now EA, which covered 43% of the former Bright Now employees, to its operations.

The Deputy President of the Fair Work Commission, Saunders, was required to determine whether to exercise discretion under section 318(1) of the Act to make the order sought by LWB. The decision hinged on the consideration of factors specified in section 318(3) of the Act, including the views of the new employer and employees, potential disadvantages to employees, the nominal expiry date of the Bright Now EA, its potential negative impact on LWB’s productivity and economic disadvantage, the degree of business synergy between the Bright Now EA and the SCHADS Award, and the public interest.

The Deputy President concluded that the views of LWB and the former Bright Now employees, who largely accepted employment on the condition that the Bright Now EA would not apply, supported the order. While some employees expressed concerns about their pay rates, overall, the terms and conditions under the SCHADS Award were more beneficial and the employees would not be materially disadvantaged. The nominal expiry date of the Bright Now EA was deemed a neutral consideration. The application of the Bright Now EA would negatively impact LWB’s productivity and result in significant economic disadvantage, as the funding from DCJ aligned with the SCHADS Award. Differences in business synergy between the Bright Now EA and the SCHADS Award also favoured the order. Finally, the public interest in maintaining the financial viability of LWB, ensuring continuity of care for vulnerable children and young people, and overcoming staff shortages in the Lake Macquarie and Newcastle region supported the order.

The Deputy President concluded that the factors in favour of the order clearly outweighed those against it. An order was made in the terms sought by LWB, allowing it to operate under the SCHADS Award rather than the Bright Now EA.

Orders