Lifehouse at RPA as trustee for Lifehouse at RPA Trust

[2013] FWC 6973

[2013] FWC 6973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768BA—Transfer of instruments

Lifehouse at RPA as trustee for Lifehouse at RPA Trust
(AG2013/2529, AG2013/2631, AG2013/2667, AG2013/2669)

DEPUTY PRESIDENT BOOTH SYDNEY, 13 SEPTEMBER 2013

Applications for orders that copied State instruments not cover transferring employees and new employer.

[1] This decision concerns four applications made pursuant to s.768BA of the Fair Work Act 2009 (the Act) by Lifehouse at RPA as trustee for Lifehouse at RPA Trust (Lifehouse). Lifehouse seeks orders regarding the transfer of employees who are currently covered by a number of NSW state instruments to employment under a number of enterprise agreements.

Background

[2] Lifehouse at RPA is an integrated cancer hospital located in Camperdown, which is due to commence operations in November 2013. It is a private, not-for-profit organisation. Currently, it does not have any employees. Lifehouse plans to commence a recruitment process that will source employees from the NSW public health system, employed in the Sydney Local Health District (SLHD). These employees are currently employed in the NSW Health Service pursuant to the Health Services Act 1997 (NSW), and are covered by a variety of NSW State awards made pursuant to the Industrial Relations Act 1996 (NSW). The awards that cover these employees and that are subject to the four applications under consideration (the State Awards) are set out in Annexure A to this decision.

[3] The employees that Lifehouse seeks to recruit would likely be transferring employees for the purposes of Part 6-3A of the Act. As such, the State Awards would continue to cover these transferring employees as “copied State instruments”. For this reason, Lifehouse has made enterprise agreements 1 pursuant to s.172(2)(b) of the Act (the greenfields agreements) with number of unions including, in relation to the current applications, the Health Services Union (HSU) and the Australian Salaried Medical Officers’ Federation (ASMOF). The intention of the relevant parties is that employees recruited by Lifehouse who transfer from the NSW Health Service will be offered employment with Lifehouse on the basis that their terms and conditions of employment will be regulated by the relevant greenfields agreement. The employees could otherwise choose to remain employed by the NSW Health Service and be covered by the relevant State Award.

[4] The orders sought by Lifehouse would have the effect of affirming the above arrangements by explicitly stating that former employees of the NSW Health Service who become employees of Lifehouse will not be covered by any of the State Awards, but rather will be covered by the relevant greenfields agreement.

Relevant legislative provisions

Section 768BA of the Act provides that:

“768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re-employment time covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to be a transferring employee;

(ii) the new employer or a person who is likely to be the new employer;

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(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 a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the transferring employee’s re-employment time;

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

Consideration

[5] As the likely new employer, Lifehouse is able to make the applications pursuant to s.768BA(2)(b)(ii) of the Act. The orders sought are within the scope of s.768BA(1)(a).

[6] In its applications, Lifehouse states that it seeks the orders following consultation with, and with the consent of, the HSU and the ASMOF. Lifehouse has also consulted with current NSW Health Service employees who are employed in services that will transfer to Lifehouse. Lifehouse states that it is not aware of any employees who hold a view in opposition to the making of the orders. The applications were listed for an In Chambers hearing on 13 September 2013, with any person who wished to express a view in relation to the applications directed to contact my chambers at least one hour prior to the listed time. No person did so. I consider that Lifehouse has adequately consulted with employees who would be affected by the orders sought, and that those employees do not oppose the making of the orders (see s.768BA(3)(a)(i) of the Act). I infer from its having made the applications and the content of those applications that Lifehouse supports the making of the orders (s.768BA(3)(a)(ii)).

[7] The greenfields agreements provide terms and conditions of employment which are more beneficial than those set out in the State Awards. I am satisfied that the transferring employees will not be disadvantaged in their terms and conditions of employment by the making of the orders sought (s.768BA(3)(b)). To the extent that s.768BA(3)(d) and (e) are relevant where an order is sought that a copied State instrument not cover an employer, I consider that if the State Awards applied to Lifehouse it would have a negative impact upon productivity and increase costs given the number of applicable awards and the variation in terms and conditions contained therein.

[8] I consider that ss.768BA(3)(c) and (f) are not relevant to the applications.

[9] In relation to s.768BA(3)(g), there is no material before me which suggests that the making of the orders is not in the public interest. I consider that it is in the public interest to ensure that Lifehouse employees are covered by enterprise agreements negotiated with the HSU and ASMOF to meet the particular needs of the workplace, and which provide increased benefits for employees. I also consider that it is in the public interest to put beyond doubt which industrial instruments will apply to staff commencing at the new site.

Conclusion

[10] In all of the circumstances, and having regard to the factors set out in s.768BA(3) of the Act, I am satisfied that I should make the orders sought. A separate order will be issued to give effect to this decision with respect to each application. 2 In accordance with s.768BA(4) of the Act, the orders will take effect from the date of the transferring employees’ re-employment.

DEPUTY PRESIDENT

Annexure A: List of copied State instruments subject of the applications

AG2013/2529

• Staff Specialists (State) Award

AG2013/2631

• Health Employees’ Administrative Staff (State) Award



• Health Employees’ (State) Award



• Health Managers (State) Award



• Health Employees’ Computer Staff (State) Award



• Public Hospital Professional Engineers’ (Bio-medical Engineers) (State) Award



• NSW Health Service Health Professionals (State) Award



• Health and Community Employees Psychologists (State) Award



• Health Employees Pharmacists (State) Award



• Health Professional and Medical Salaries (State) Award



• Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award



• Health Employees’ Conditions of Employment (State) Award

AG2013/2667

• Public Hospital Medical Physicists (State) Award



• Hospital Scientists (State) Award

AG2013/2669

• Health Employees’ Medical Radiation Scientists (State) Award



• Health Employees’ Conditions of Employment (State) Award

 1   The agreements that are relevant to the applications under consideration are the Lifehouse Medical Radiation Scientists Greenfields Agreement 2013 [AE404058]; the Lifehouse Health Professionals and Support Services Greenfields Agreement 2013 [AE404064]; the Lifehouse Medical Physicists Greenfields Agreement 2013 [AE404066]; and the Lifehouse Staff Specialists Greenfields Agreement 2013 [AE404068].

 2   PR541825; PR541826; PR541827; PR541828.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR541787>