National Disability Insurance Scheme Launch Transition Agency T/A National Disability Insurance Agency (NDIA)

[2019] FWC 228

[2019] FWC 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768AX - Application to vary copied State instruments

National Disability Insurance Scheme Launch Transition Agency T/A National Disability Insurance Agency (NDIA)
(AG2018/6608)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 16 JANUARY 2019

Application to vary a copied State instrument in relation to transferring employees.

[1] On 27 November 2018, the National Disability Insurance Scheme Launch Transition Agency T/A the National Disability Insurance Agency (NDIA) lodged an application under s.768AX of the Fair Work Act 2009 (the Act) to vary a copied State instrument covering a new employer and transferring employees.

[2] The NDIA seeks to vary the terms of the Public Service and Government Officers CSA General Agreement 2017 (the Agreement) insofar as it applies to them. The Agreement is registered by the Western Australian Industrial Relations Commission [2017 WAIRC 00993].

Background

[3] As a result of the roll out of the National Disability Insurance Scheme (NDIS) in Western Australia, approximately 150 Western Australian Government employees (the transferring employees) are to be employed by the NDIA.

[4] The transferring employees will undertake the same or substantially the same work for the NDIA as they did for the Western Australian Government.

[5] A transfer of business is anticipated to occur from the Western Australian Government (the old State employer) to the NDIA (the new employer) within the meaning of s.768AD of the Act.

[6] The Agreement currently covers the transferring employees and it is anticipated that once the transferring employees are terminated by the Western Australian Government, the Agreement will be mirrored to become a copied State employment agreement (CSEA), and thus cover and apply to the NDIA upon the transferring employees’ employment by the NDIA.

Legislation

[7] Section 768AX(3) of the Act sets out the matters that the Fair Work Commission (the Commission) must take into account in deciding whether to make a variation to a copied State instrument for transferring employees.

[8] It provides as follows:

‘Matters that the FWC must take into account

(3) In deciding whether to make a variation under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the copied State instrument as varied; 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 copied State instrument as varied in relation to their terms and conditions of employment;

(c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;

(d) whether the copied State instrument, without the variation, 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, without the variation;

(f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

(g) the public interest.’

[9] I will now consider these factors below.

Consideration

[10] As the new employer or likely new employer, the NDIA is able to make an application of the present type under s.768AX(2) of the Act.

[11] No issues were taken with the NDIA’s submissions and I have adopted them.

Views of affected employees and new employer – s.768AX(3)(a)

[12] The NDIA submits that it has provided information to the transferring employees regarding the variations sought to the CSEA and remains in consultation with them about the process.

[13] Further, the NDIA supports the variations being made to the CSEA.

[14] On 3 December 2018, Mark Perica, Senior Legal Officer of the Community and Public Sector Union (CPSU) (SPSF Group), acting on behalf of the CPSU (SPSF Group), the Civil Service Association of Western Australia Incorporated (CSAWA) and its members, some of whom are affected employees, filed submissions in support of the application.

[15] On 3 December 2018, the Community and Public Sector Union (CPSU) (PSU Group) also advised the Commission that it did not oppose the application

[16] I have taken into account the views of the employees who would be affected by the CSEA as varied, and the views of the NDIA as the new employer or likely new employer.

Disadvantage to any employees – s.768AX(3)(b)

[17] The NDIA submits that no employees will be disadvantaged by the proposed variations as they go no further than confirming the interaction between the CSEA and federal legislation, and the application of NDIA policy to support the CSEA entitlements when the transferring employees become Australian Public Service employees.

[18] Given there is no opposition to the application, I accept the NDIA’s submissions and I find that no employees will be disadvantaged by the CSEA as varied in relation to their terms and conditions of employment.

Nominal expiry date of the agreement – s.768AX(3)(c)

[19] I have considered the Agreement’s nominal expiry date of 12 June 2019.

Negative impact on productivity and economic disadvantage – s.768AX(3)(d) and s.768AX(3)(e)

[20] The NDIA submits that there would be a negative impact on its productivity and it would also incur significant economic disadvantage if the variations sought are not made. The NDIA states that the old State arrangements are not compatible with existing Commonwealth legislation, which will bind the transferring employees when they become Australian Public Service employees.

[21] The NDIA contends that this is a material detriment to the NDIA in terms of maintaining and administering asynchronous terms and conditions, and is contrary to the bilateral aims of making the NDIS a consolidated resource for disability services across Australia.

[22] I accept the NDIA’s submissions and I find that there would be a negative impact on the productivity of the NDIA’s workplace, and the NDIA would incur significant economic disadvantage if the variations sought are not made.

Business synergy – s.768AX(3)(f)

[23] The NDIA submits that there would be little business synergy between the CSEA and the National Disability Insurance Agency Enterprise Agreement 2016-2019 if the variations sought are not made.

[24] I accept these submissions and I find that there will be little business synergy if the CSEA is not varied as sought.

Public interest – s.768AX(3)(g)

[25] The NDIA submits that it is in the public interest to make the variations sought on the following basis:

•  The NDIA will become a complete Commonwealth regulated organisation in its pursuit of achieving the aims of the NDIS;

•  There will be a saving for the Commonwealth in relation to mitigating inefficient time and expenses;

•  There will be a promotion of enterprise bargaining, which will ultimately result in the alignment of the NDIA employees’ terms and conditions at the enterprise level; and

•  The variations sought are consistent with the object of the Act in bringing State-regulated employees into the national based industrial relations system.

[26] I have taken into account the NDIA’s submissions and I find that it is in the public interest to make the variations sought.

[27] The matter was listed to be heard before me on 6 December 2018.

[28] In light of the submissions filed by the CPSU (SPSF Group), the CSAWA and its members on 3 December 2018, I proposed to determine the application on the papers.

[29] On 3 December 2018, the CPSU (PSU Group) advised the Commission that it sought to be covered by the relevant instrument.

[30] On 4 December 2018, the NDIA advised the Commission that it had no objection to the application being determined on the papers and to the CPSU (PSU Group) being covered by the CSEA.

[31] The matter was listed for Non-Attendance Hearing on 13 December 2018 and parties were to contact the Commission if they wished to be heard in the matter.

[32] The NDIA confirmed in writing that it would distribute the Notice of Listing for the Non-Attendance Hearing to all employees affected by the application.

[33] No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

Conclusion

[34] I have considered the matters set out in the relevant sections of the Act and I am satisfied on the basis of the materials provided that the variations sought be made.

[35] Further, I grant the CPSU’s (PSU Group) application to be covered by the copied State instrument as it is agreed to between the parties.

[36] The application is granted and an Order in the terms sought will be issued accordingly.

DEPUTY PRESIDENT

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