Lifehouse at RPA as trustee for Lifehouse at RPA Trust

[2013] FWC 6925

[2013] FWC 6925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768BA - Application for an order about coverage for transferring employees under a state instrument

Lifehouse at RPA as trustee for Lifehouse at RPA Trust
(AG2013/2273)

VICE PRESIDENT WATSON SYDNEY, 12 SEPTEMBER 2013

Application for an order about coverage for transferring employees under a state instrument - Fair Work Act 2009 - s. 768BA.

[1] This decision concerns an application made pursuant to s.768BA(2) 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 particular nurses who are currently covered by a NSW state instrument to employment under the Lifehouse Nurses Greenfields Agreement 2013 (Greenfields Agreement).

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, which would source nurses from the NSW public health system, employed in the Sydney Local Health District (SLHD). These nurses are currently employed in the NSW Health Service pursuant to the Health Services Act 1997 (NSW), and are covered by the Public Health System Nurses’ & Midwives’ (State) Award 2011 (NSW Nurses Award).

[3] The nurses Lifehouse seeks to recruit would likely be transferring employees for the purposes of Part 6-3A of the Act. As such, the NSW Nurses Award would continue to cover these transferring employees as a “copied State instrument”. For this reason, Lifehouse, in consultation with the New South Wales Nurses and Midwives’ Association (NSWNMA) and the Australian Nursing and Midwifery Foundation (ANMF) made the Greenfields Agreement. The intention of the relevant parties was that nurses recruited by Lifehouse who may transfer from the NSW Health Service would be offered employment with Lifehouse on the basis that their terms and conditions of employment would be regulated by the Greenfields Agreement. The nurses could otherwise choose to remain employed by the NSW Health Service and be covered by the NSW Nurses Award.

[4] The orders sought by Lifehouse, with consent of the NSWNMA and the ANMF 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 the NSW Nurses Award, and will be covered by the Greenfields Agreement.

The legislation

[5] The application is made pursuant to s.768BA of the Act, which allows the Commission to make orders that a copied State instrument for a transferring employee does not or will not cover the transferring employee, and that an enterprise agreement does or will cover the transferring employee.

[6] The matters the FWC must take into account in determining whether to make the above orders are set out in s.768BA(3):

“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.”

[7] I turn now to consider these factors.

Relevant Factors

[8] As the new employer or likely new employer, Lifehouse is able to make an application of the present type pursuant to s.768BA(2). The orders sought by Lifehouse are within the scope of s.768BA(1) of the Act.

[9] In the material provided with its application, Lifehouse states that the application is made following consultation with the NSWNMF and the ANF, and with consent of these organisations. Lifehouse has also consulted with current NSW Health Service nurses who are employed in services which will transfer to Lifehouse at RPA. The Greenfields Agreement makes reference to this group as eligible directly impacted employees. Lifehouse states in its application that it is not aware of any views of employees in opposition to the current application. The views of Lifehouse, as the likely new employer, must also be taken into account. I consider that Lifehouse has adequately consulted with directly impacted employees and the relevant unions, and that Lifehouse itself supports the orders sought.

[10] The Greenfields Agreement provides terms and conditions of employment which are more beneficial than those set out in the NSW Nurses Award. I consider that transferring employees would not be disadvantaged as a result of being covered by the Greenfields Agreement.

[11] Lifehouse also suggests that the Greenfields Agreement will provide greater business synergy to its operations than the NSW Nurses Award. It says that the agreement is a workplace instrument which has been appropriately tailored to its particular operations. Lifehouse considers this will have a positive impact on it and the nurses it employs in terms of both productivity and ease of understanding the instrument.

Conclusion

[12] In all of the circumstances, I am of the view that Lifehouse has met each of the requirements in s.768BA(3), and that making the orders sought would be in the public interest. The relevant unions support the application, and I am satisfied that the nurses who choose to take up employment with Lifehouse would not be disadvantaged by the transfer of their employment. An order will issue concurrently with this decision.

VICE PRESIDENT WATSON

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