Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions

[2014] FWC 1903

[2014] FWC 1903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions
(AG2014/405)

DEPUTY PRESIDENT BOOTH SYDNEY, 21 MARCH 2014

Application in relation to new employer - employee accepted employment with Applicant - transfer of instrument.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions (the Applicant) seeking an order from the Fair Work Commission (the Commission) that a transferrable instrument, being the Medibank Private Enterprise Agreement 2013 (the Agreement) not apply to the Applicant in relation to the employment of Philomena Prasad who is likely to transfer her employment from Medibank Private Limited (Medibank Private) to the Applicant, which are related entities. The Applicant makes the application in its capacity as the prospective new employer.

[2] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission:

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.

[3] Mr John Brecht, Employee Relations Manager, stated in the Grounds of the Application (Form F40) that Ms Prasad will be engaged within the Australian Defence Force Invoicing Team, where management responsibility has recently passed from Medibank Private to the Applicant as a result of an internal restructure. No job losses have resulted from this restructure.

[4] Mr Brecht said that Ms Prasad had been approached by the Applicant in relation to transferring her employment from Medibank Private to the Applicant. This offer has been accepted conditional upon the Agreement not applying to Ms Prasad.

[5] Mr Brecht annexed a copy of correspondence provided by the Applicant to Ms Prasad at the time of the offer of employment. Ms Prasad was invited to indicate her own preference in relation to whether maintain coverage of the Agreement or transfer to the Applicant whereby the Agreement would no longer apply. Ms Prasad indicated that she wished to transfer to the Applicant.

[6] I listed the matter for teleconference on 19 March 2014 with a Notice of Listing being provided to the Applicant and Ms Prasad. Ms Prasad noted her receipt of the Notice of Listing to the Applicant (who advised my Chambers) and advised that she was happy for the application to proceed with her support and indicated her preference to not participate in the teleconference.

[7] Mr Brecht stated that he did not believe that Ms Prasad would be disadvantaged by the granting of an order. He also submitted that the granting of an order would have positive impacts on productivity and business synergy and, conversely, that the Applicant would sustain economic disadvantage in being required to maintain different sets of terms and conditions within one team of employees. Therefore, it would not be against the public interest for the order to be granted.

[8] Having read the application and supporting documents and spoken to Mr Brecht during the teleconference, I am satisfied that all the requirements of s.318 of the Act have been met. An order will issue as sought.

DEPUTY PRESIDENT

Appearances:

J Brecht for Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions

Hearing details:

2014.

Teleconference:

19 March.

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