Northern NSW Helicopter Rescue Service Ltd T/A Westpac Rescue Helicopter Service

[2017] FWC 6524

[2017] FWC 6524

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Northern NSW Helicopter Rescue Service Ltd T/A Westpac Rescue Helicopter Service
(AG2017/5314)

NORTHERN REGION LIFE SAVER RESCUE HELICOPTER ENTERPRISE AGREEMENT NO 5

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 8 DECEMBER 2017

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

[1] This decision will confirm my ex tempore decision delivered on 14 November 2017.

[2] Northern NSW Helicopter Rescue Service t/a Westpac Rescue Helicopter Service (the ‘applicant’), filed an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’), seeking orders from the Fair Work Commission (the ‘Commission’). The application arises in the context of a somewhat complex arrangement that occurred in 2013 between Hunter Region SLSA Helicopter Rescue Service Pty Ltd (Hunter SLSA) and Northern Region SLSA Helicopter Rescue Service Pty Ltd (‘Northern SLSA’). The arrangement was one in which Hunter SLSA would bid for a tender to the NSW Government to provide emergency helicopter medical services to the Northern NSW Region. As part of the arrangement, Hunter SLSA would continue to operate under a new business name, Northern NSW Helicopter Rescue Service Pty Ltd. It was part of this arrangement that pilots and crew members employed for Northern SLSA, would be offered employment with the applicant. Northern SLSA would then cease to operate. These transferring employees would continue to perform the same work as they had previously performed by Northern SLSA. Immediately prior to the arrangement taking effect, both Hunter SLSA and Northern SLSA were separate entities and serviced separate regions, engaging their own employees. Hunter SLSA employed pilots and crew under the Hunter Region Rescue Helicopter Pilots and Crewpersons Enterprise Agreement No. 5 (the ‘Hunter Agreement’). Northern SLSA employed pilots and crew under the Northern Region Life Saver Rescue Helicopter Enterprise Agreement No. 5 (the ‘Northern Agreement). The Northern Agreement reached its nominal expiry date on 1 October 2017, and the Hunter Agreement will reach its nominal expiry date on 31 December 2018. On 27 April 2017, five pilots and four crew who were previously employed by Northern SLSA and covered by the Northern Agreement ceased employment with Northern SLSA and commenced employment with the applicant (the ‘Transferring Employees’). Pursuant to s 313 of the Act, the Northern Agreement now covers the applicant and continues to cover the Transferring Employees following the transfer of employment. The applicant seeks orders, pursuant to s 318 of the Act, that the Northern Agreement no longer covers it, or the Transferring Employees.

The applicable legislation

[3] The following provisions of the Act are relevant to my determination of this application

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

318 Orders relating to instruments covering new employer and transferring employees

(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 employercovers, 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.

[4] Ms Fiona Williams, Human Resources Manager for the applicant filed the Form F40 and provided the relevant information supporting the application. In respect to the views of the employer, Ms Williams stated that that the employer believes that all its pilots and crew should be covered by the same agreement as they are performing the same roles; albeit in different locations. She said it would provide fairness, consistency and alignment with its operational arrangements. In respect to the views of the employees, Ms Williams said that negotiations for the Hunter Agreement were transparent for the Transferring Employees and it included their views. One of the Transferring Employees (Mr Nathan Scard) had attended bargaining meetings. She said the Transferring Employees had been consulted prior to the applicant making a decision to make this application, with meetings taking place on 18 September 2017 and 6 October 2017. The Transferring Employees were also provided with a letter outlining the nature of the application and its effect on them. Each employee had a separate meeting with Ms Williams, in which they were given an opportunity to ask questions about the proposed application, the differences between the Northern Agreement and the Hunter Agreement and their own individual circumstances. Employees were given a feedback form in which they could ask further questions and/or indicate whether they were in support (or otherwise) of the s 318 application. Each Transferring Employee indicated, either by way of email or returning the feedback form, that they wished to be covered by the Hunter Agreement, rather than to the Northern Agreement.

[5] In respect to whether any employees will be disadvantaged, Ms Williams said that none of the Transferring Employees, when considered overall, would be disadvantaged by the Commission making the orders sought. She provided a comparison document of the different entitlements between the Agreements. She explained that the Hunter Agreement is more beneficial than the Northern Agreement in respect to total remuneration, annual leave loading, field leave, working on public holidays, overtime, insurance reimbursements and redundancy. She conceded that the Hunter Agreement is less beneficial than the Northern Agreement in respect to the training availability (24 hours per year instead of 16 hours) and overtime for crew (in that the percentage penalty is lower). Ms Williams submitted that the orders sought would have a positive effect on the applicant’s business synergy, given the Hunter Agreement was negotiated with the specific requirements of the applicant’s service requirements, whereas the Northern Agreement was not. The Hunter Agreement’s terms reflect this intention and purpose.

[6] In respect to public interest, Ms Williams said that the applicant provides an important safety and rescue service that benefits the community in Northern New South Wales. It is in the public interest that the applicant performs this function as efficiently and cost effectively as possible and is not hampered by administrative burden. Mr Williams submitted that if the orders sought were made, there is expected to be an increase in productivity, given the reduction in the administrative burden of having two separate agreements. Ms Williams added that conversely, there is a potential for there so be some economic disadvantage if the orders are not granted, which would be associated with the cost of administrating two agreements.

[7] At a hearing of the application on 14 November 2017, Mr M Parker, Solicitor, appeared with permission granted pursuant to s 596 of the Act, with Mr F Williams for the applicants and Mr Nathan Scard (one of the Transferring Employees). Mr Parker gave further details of the background to the application and reiterated that the requested orders are consistent with the objects of Part 2-8 of the Act. Mr Scard expressed his support for the proposed orders.

[8] Having considered the materials filed by the applicant and the views of the parties, I reaffirm the orders made on 14 November 2017. In doing so, I have taken all of the matters in s 318(3) into account; in particular, the views of the applicant and the employees. I am satisfied that there is no disadvantage to the employees if the orders are granted and that there would be a negative impact on the productivity of the applicant’s business should the orders not be granted. Further, I am satisfied that granting the orders would not be contrary to the public interest (s 318(3)(g)). Pursuant to s 318(1), I make the following orders:

1. The Northern Region Life Saver Rescue Helicopter Enterprise Agreement No. 5 does not cover the Northern NSW Helicopter Rescue Service Ltd T/A Westpac Rescue Helicopter Service; and

2. The Hunter Region Rescue Helicopter Pilots and Crewpersons Enterprise Agreement No. 5 covers the Transferring Employees.

The order is effective on and from 14 November 2017.

DEPUTY PRESIDENT

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