Melbourne Archdiocese Catholic Schools Limited

[2021] FWC 425

[2021] FWC 425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Melbourne Archdiocese Catholic Schools Limited
(AG2020/4187)

Educational services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 29 JANUARY 2021

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

[1] On 24 December 2020, Melbourne Archdiocese Catholic Schools Limited (MACS) filed an application in the Fair Work Commission (Commission) pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth) (the Act). The application is made in respect of the operation of the Victorian Catholic Education Multi-Enterprise Agreement 2018 1to non-transferring employees.

[2] The Agreement was approved on 20 February 2019 and has a nominal expiry date of 30 April 2021.

[3] The background to the application is that MACS is an incorporated public company limited by guarantee which has been established to assume, with effect from 1 January 2021, the governance of Catholic schools in the Archdiocese of Melbourne. The governance change follows the Australian Catholic Bishops Conference’s acceptance of Recommendation 16.6 from the Royal Commission into Institutional Responses to Child Sexual Abuse that parish priests are not the employers of principals and teachers in Catholic schools.

[4] Effective 1 January 2021 MACS will become the employer of staff in the vast majority of schools owned by the Archdiocese of Melbourne, its parishes, and associations of parishes. The majority of employees are covered by the Victorian Catholic Education Multi-Enterprise Agreement 2018 (the Agreement).

[5] The transfer of each of the schools to MACS is formalised by way of executing a School Transfer Agreement (STA). Mr Jim Miles, Executive Director of Catholic Education Melbourne (CEM) filed a Statutory Declaration and a list of the schools (Relevant Employers) who have signed their respective STA (now Annexed to this decision as Annexure A).

[6] The STA’s provide for the transfer of all assets and property of the Relevant Employer (with the exception of school land and buildings) to MACS. The STA’s also provide that MACS will become the employer of all employees of the Relevant Employers, subject to those employees accepting offers of employment with MACS.

[7] Mr Miles submits that the STA’s give effect to a transfer of business from the Relevant Employers to MACS, and that the Agreement, which is a transferable instrument for the purpose of Part 2-8 of the Act, will cover MACS and the employees of the Relevant Employer who become employees of MACS (transferring employees).

[8] Ms Debra James, General Secretary of the Independent Education Union -Victoria Tasmania Branch filed a statutory declaration in support of the Application. Ms James submits that the Independent Education Union of Australia (IEUA) has consulted widely with its members about the transfer of employment and its impacts on the transferring and non-transferring employees. Ms James submits that an outcome of the consultation was an undertaking from MACS that they would make the present s.319 application to ensure that non-transferring employees would be covered by the Agreement.

[9] The purpose of the present application is to ensure the Agreement will also cover any non-transferring employees who perform work for MACS of which Mr Miles submits there are currently no non-transferring employees.

[10] Mr Miles submits in the absence of an order a person employed by MACS after the transfer of business would otherwise be covered by the Educational Services (Schools) General Staff Award 2020 2, the Educational Services (Teachers ) Award 20203, the Clerks -Private Sector Award 20204, and the Health Professionals and Support Services Award 20205(Awards).

The relevant legislation

[11] Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

[12] Section 311(1) of the Act defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.

[13] The Agreement is a transferable instrument for the purposes of s.312(1)(a) of the Act.

Consideration

[14] I am satisfied that there will be a transfer of business between the Relevant Employers and the MACS for the purposes of s.311(1) of the Act as employees of the Relevant Employers will cease to be employed by them and will be engaged by MACS to perform the same work on substantially the same terms and conditions of employment.

[15] The Independent Education Union of Australia has filed a statutory declaration in support of the application.

[16] In deciding whether to make orders of this kind, the Commission must take into account a range of factors set out in section 319(3) of the Act. I will deal with each of those matters separately.

s.319(3)(a) - The views of the new employer and the employees who would be affected by the order

[17] MACS submits there are not presently any non-transferring employees of MACS who would otherwise be covered by the Agreement, therefore their views in relation to this application cannot be obtained.

[18] MACS submits the IEUA who is covered by the Agreement supports the Application.

[19] There were no existing or anticipating non-transferring employees whose views could be sought. This is a neutral consideration.

s.319(3)(b) - Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[20] Ms James submits that in the absence of the order sought, the wages and conditions of non-transferring employees would be prescribed by the four Awards set out in paragraph [9] of this decision resulting in less favourable wages and conditions.

[21] The Agreement provides for more generous conditions than the relevant Awards. If the order is granted, employees will benefit from a number of more beneficial terms, including more beneficial rates of pay and entitlements. I am satisfied that employees will not be disadvantaged if the application is granted.

s.319(3)(c) - The nominal expiry date of the agreement

[22] The nominal expiry date of the Agreement is 30 April 2021. This is a neutral consideration.

s.319(3)(d) - Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[23] MACS submits that the granting of this application will assist the management of employee relations by ensuring that transferring and non-transferring employees are employed on common terms and conditions, and that a consistent payroll and reporting system can be utilised by MACS.

[24] I am satisfied that granting the order would promote efficiencies by streamlining terms and conditions of employment so that they apply in the same way to all employees performing work covered by the Agreement. This weighs in favour of granting the application.

s.319(3)(e) - Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[25] MACS submits that whilst it would be economically disadvantaged to the extent that it would be required to pay higher wages to employees if the order is granted, the economic disadvantage flowing from the application of multiple industrial instruments would result in a material increase in administrative costs and inefficiencies in relation to the management of transferring and non-transferring employees on different terms and conditions. This weighs in favour of granting the application.

s.319(3)(f) - The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[26] MACS submits the Agreement is specifically adapted to the operations of the Catholic schools in the Archdiocese of Melbourne, and CEM, whereas the Awards are of a much broader industrial and occupation coverage. The Agreement is better suited to the circumstances and requirements of MACS, and the employees who perform work within its scope. I note the Awards would adequately cover MACS and that there is no specific submissions before me as to how the Agreement is better suited to the requirements of MACS. I find this to be a neutral consideration.

s.319(3)(g) - The public interest

[27] MACS submits that it will be responsible for the governance of the vast majority of Catholic schools in the Archdiocese of Melbourne. It submits it is in the public interest that MACS be able to effectively deliver its services in this respect by ensuring that the industrial instruments that govern the employment of those charged with delivering those services, as well as those whose employment supports the provision of those services, are consistent wand appropriately adapted to meet its requirements. The public interest is not agitated by this application. I am satisfied that it is not contrary to the public interest to make the order sought.

Conclusion

[28] Having considered each of the matters outlined in s 319(3) of the Act and the material that has been filed, I am satisfied that an order pursuant to s 319(1)(b) of the Act should be made. The order 6 will be issued separately to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE501904  PR726492>

Annexure A

 1   AE501904

 2   MA000076

 3   MA000077

 4   MA000022

 5   MA000027

 6   PR726493