DECISION

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

NewDirection Bellmere Pty Ltd T/A NewDirection Care at Bellmere
(AG2018/462)

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 22 FEBRUARY 2018

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

[1] An application under s.319 of the Fair Work Act 2009 (the Act) for an order that the Synovum Care Group House Companions Enterprise Agreement 2016 (the Agreement) covers NewDirection Bellmere Pty Ltd T/A NewDirection Care at Bellmere (the Applicant) in respect of non-transferring employees was filed by the Applicant on 13 February 2018.

[2] The Applicant seeks the following order under s.319 of the Act, that:

Pursuant to s.319(1)(b) of the Act, the Synovum Care Group House Companions Enterprise Agreement 2016 will cover any non-transferring employee who commences employment with the Applicant on or after the date on which the order is made by the Commission to perform work for the Applicant in the position of House Companion, unless and until the Agreement is terminated or replaced in accordance with the Act.

[3] The Applicant has filed materials in support of the application. An Affidavit of Natasha Chadwick, Managing Director of the Applicant, was filed, confirming that the Agreement contains terms and conditions of employment that are more favourable overall than those provided under the Aged Care Award 2010, which non-transferring employees would be covered under if engaged and the order sought not issued.

[4] The material provided by the Applicant discloses that the Applicant does not currently employ any non-transferring employees who would be affected by the making of the order sought.

[5] Additionally, there are no Employee Organisations covered by the Agreement.

[6] I have considered the matters set out in s.319(3)(a) to (g) of the Act and I am satisfied on the basis of supporting documentation provided with the application that the order should be issued. Consequently the Application is granted and the Order [PR600420] in the terms sought will be issued accordingly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, NewDirection Bellmere, a provider of aged care services, sought an order from the Fair Work Commission in relation to instruments covering its new employer status and non-transferring employees. The dispute arose from the acquisition of Bellmere Village, an aged care facility, by the applicant from the previous employer, Bellmere Village Pty Ltd. The applicant argued that it was entitled to be recognised as the new employer under the Fair Work Act 2009 and that certain employees who were not transferred to the applicant's employment should be treated as non-transferring employees.

The key legal issues before the Commission were whether the applicant was the new employer of the transferred employees under section 522 of the Fair Work Act and whether certain employees who remained employed by the previous employer were correctly classified as non-transferring employees. The applicant contended that the transfer of the business was a genuine transfer of a business as a going concern (TOBGC) and that it was entitled to be recognised as the new employer. The applicant also argued that employees who remained with the previous employer were not transferring employees but rather non-transferring employees who were entitled to remain on their existing terms and conditions.

The Fair Work Commission found that the transfer of the business was indeed a genuine TOBGC, and the applicant was recognised as the new employer. The Commission noted that the applicant had assumed control of the day-to-day operations of the aged care facility and had taken on the responsibility for the employees previously employed by the previous employer. The Commission also found that certain employees who remained with the previous employer were correctly classified as non-transferring employees, as they were not employed by the applicant and continued to perform their roles under the existing employment arrangements.

The Commission made orders recognising the applicant as the new employer and confirming the classification of certain employees as non-transferring employees. The orders also provided for the continuity of existing industrial instruments and the preservation of the existing terms and conditions of employment for the non-transferring employees. The decision was a significant step in resolving the employment-related issues arising from the transfer of the aged care facility, ensuring that the rights and obligations of the employees and the new employer were properly addressed.

NewDirection Bellmere Pty Ltd T/A NewDirection Care at Bellmere

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established