Medibank Health Solutions Telehealth Pty Ltd t/as Medibank Health Solutions

[2013] FWC 6213

[2013] FWC 6213

FAIR WORK COMMISSION

DECISION

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

Medibank Health Solutions Telehealth Pty Ltd t/as Medibank Health Solutions
(AG2013/2247)

DEPUTY PRESIDENT SAMS SYDNEY, 29 AUGUST 2013

Application in relation to transfer of business - transferable instrument - application that the transferrable instrument not cover transferring employees - orders granted.

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Medibank Health Solutions Telehealth Pty Ltd t/as Medibank Health Solutions (the ‘applicant’) which seeks orders from the Commission that a transferrable instrument, being the Medibank Private Enterprise Agreement (PHI Division) 2010 [AE877904] (the ‘Agreement’) not apply to the applicant in relation to the employment of Gayle O’Connor, Yi-Chen Tsai, Khim Yap and Michelle Alasso (collectively, the ‘employees’) who are likely to transfer their employment from Medibank Private Limited (the ‘old employer’) to the applicant, which are related entities (s 311). The applicant applies in its capacity as a person who is likely to be the new employer (s 318(2)(a)).

[2] Section 318 sets out the circumstances in which an orders may be made by the Commission, pursuant to s 318 as follows:

‘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] In the applicant’s Form F40 - Application for Orders in Relation to Transfer of Business - Mr J Brecht, Employee Relations Manager, said that the employees are engaged within the team known as the Australian Defence Force Invoicing Team. The management responsibility of the team had just passed from the old employer to the applicant as a result of an internal restructure. Mr Brecht noted that the restructure had not resulted in any job losses.

[4] Mr Brecht said that the employees had been approached by the applicant in relation to transferring their employment to the applicant. This offer had been accepted, conditional upon the Agreement not applying to them. If the orders were granted, the applicants would be employed on similar terms and conditions as new employees of the applicant, in that they would be on individual employment contracts underpinned by the Health Professional and Support Services Award 2010 and the National Employment Standards (NES).

[5] Mr Brecht annexed copies of correspondence provided by the applicant to each of the employees at the time of the offer of employment, in which they were advised of the implications of transferring the Agreement and the applicant’s preference for this not to occur. The employees were also invited to indicate their own preference. Each of the employees responded that they did not wish the Agreement to apply to their transfer of employment (s 318(3)(b). Mr Brecht also said that the applicant did not see the employees as being disadvantaged by the grant of the orders, in view of their preference to accept the employment of the applicant on terms and conditions negotiated between the parties (s 318(3)(c)). He also noted that the nominal expiry date of the Agreement was 31 December 2012.

[6] Mr Brecht submitted that the granting of the orders sought would have positive impacts on productivity (s 318(3)(d) and business synergy (s 318(3)(f)) 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 (s 318(3)(e)). He said that it would not be against the public interest for the orders to be granted.

[7] Ms N Hartman of the Community and Public Sector Union (CPSU - PSU Group) (the ‘Union’), which is entitled to represent the industrial interests of the employees, also corresponded with my chambers and indicated that the Union did not oppose the application.

[8] Having reviewed the approval documentation, I am satisfied that all the requirements of s 318 of the Act have been met. Accordingly, I propose to issue the orders sought by the applicant, which accompany the publication of this decision.

DEPUTY PRESIDENT

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