Marathon Health Ltd T/A Marathon Health

[2018] FWC 2845

[2018] FWC 2845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Marathon Health Ltd T/A Marathon Health
(AG2018/1698)

Australian Capital Territory
COMMISSIONER JOHNS	SYDNEY, 29 MAY 2018

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

[1] Marathon Health Ltd (Applicant) has applied for an order under section 318 of the Fair Work Act 2009 (the Act) dealing with instruments covering a new employer and transferring employees in the context of a transfer of business.

[2] In March 2018, the Applicant was awarded a tender to perform and provide professional health services for and on behalf of headspace Services Limited (hSL). As part of this process, the following transfers of business may occur:

a) Transfer of the employees of the hSL centre in Queanbeyan operated by Southern New South Wales Medical Local on 31 May 2018 to the Applicant. These employees are currently covered by the Southern NSW Medicare Local Enterprise Agreement 2012 (SML Agreement).

b) Transfer of the employees of the University of Canberra operating the hSL services in Canberra on 1 July 2018 to the Applicant. These employees are currently covered by the University of Canberra Enterprise Agreement 2015 – 2018 (University of Canberra Agreement).

[3] The Applicant seeks an order from the Commission that

a) the SML Agreement does not cover the Applicant or any transferring employees who have commenced, or will commence employment with the Applicant within 3 months of the date of the Order.

b) the University of Canberra Agreement does not cover the Applicant or any transferring employees who have commenced, or will commence employment with the Applicant within 3 months of the date of the Order.

c) the Western NSW Medicare Local Enterprise Agreement 2013 (Marathon Health Agreement) covers, or will cover any and all of the transferring employees who have commenced or will commence employment with the Applicant within 3 months of the date of the order.

[4] The initial application was accompanied by a supporting affidavit of Ms Jessica Bennetts, HR Manager of Marathon Health Limited which corroborated the factual claims made in the application.

[5] Section 318 of the Act provides:

“318 Orders relating to instruments covering new employer and 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 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.

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 transferring employee, or an employee who is likely to be a transferring employee;

(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 transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

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

[6] In Directions dated 30 April, amended on 1 & 4 May 2018, the Applicant was directed to provide to all affected employees a copy of the Directions issued by the Commission which required a response by 16 May 2018 if they wished to oppose the application. No opposition to the application was received from or on behalf of the employees.

[7] The Applicant’s evidence, which was not contested, dealt with each of the matters that the Commission must take into account in s.318(3).

[8] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 of the Act have been met and an Order in the terms sought should be made.

[9] An Order will issue with this decision.

COMMISSIONER

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