Peninsula Health
[2022] FWC 1941
•22 JULY 2022
| [2022] FWC 1941 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Peninsula Health
(AG2022/2106)
| Health and welfare services | |
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 22 JULY 2022 |
Application for an order relating to instruments covering new employer and transferring employees
Peninsula Health (Applicant) has made an application pursuant to s. 318 of the Fair Work Act 2009 (Act) for an order relating to a transfer of business and transferring instruments. The application arises in the context of the Applicant’s imminent acquisition of the lease of the premises and assets comprising Frankston Private Hospital (Acquisition) and its intention to offer employment to all, or the vast majority of, employees engaged at Frankston Private Hospital and employed by Healthscope Operations Pty Ltd (Healthscope).
As a consequence of the Acquisition, Frankston Private Hospital will transition to a public health facility. Additional employees will be employed by the Applicant to support its operations at that site.
The following agreements (Transferrable Instruments) currently cover employees who will transfer from employment with Healthscope to employment with the Applicant (Transferring Employees) upon the Acquisition:
a) the Healthscope - Victoria - Nurses and Midwives Agreement 2021-2025 (Nurses Agreement);
b) the Healthscope - Victoria - Allied Health Professionals –Enterprise Agreement 2020-2022 (Allied Health Agreement); and
c) the Healthscope - Victoria - Non-Clinical Employees - Enterprise Agreement - 2019-2022 (Non-Clinical Agreement), (together, Healthscope Agreements).
The union coverage of the Healthscope Agreements spans the Australian Nursing & Midwifery Federation (ANMF), the Victorian Allied Health Professionals Association (VAHPA) and the Health Workers’ Union (HWU), (together, Unions).
If the order sought is granted, the Healthscope Agreements would cease to cover the Transferring Employees and the following Public Sector Agreements would apply to the Transferring Employees:
a) the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 will apply to the Transferring Employees previously covered by the Nurses Agreement;
b) the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2021 will apply to the Transferring Employees previously covered by the Allied Health Agreement; and
c) the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 will apply to the Transferring Employees previously covered by the Non-Clinical Agreement.
On the 7 June 2022 at a mention hearing before me (Mention) each of the Unions confirmed their support of the application.
The Applicant filed extensive materials in support of the application. Without recounting those submissions or the material in the application and documents that accompany the application, I am persuaded, having regard to those submissions together with the material set out in the original application (as amended) and in the witness statement of Ms Meagan Downie Knowles, the Director People Experience & Administration for the Applicant, that the order sought should issue taking into account the matters in s.318(3) of the Act. Briefly on the material and the matters put by the Unions at the Mention, I am satisfied that:
a) the Transferring Employees support the making of the order, as does Peninsula Health;
b) if the order were made, the Transferring Employees would not be disadvantaged in relation to their terms and conditions of employment. In this context, I have also had regard to the additional guarantees provided by the Applicant in relation to superior entitlements contained in the Healthscope Agreements;
c) with the exception of the Nurses Agreement, the nominal expiry dates of the Healthscope Agreements are imminent or have passed;
d) the existence of the Transferable Instruments creates unnecessary administrative burdens for Peninsula Health as well as unnecessary industrial dislocation by reason of the existence of differing employment conditions for employees performing the same work under the same conditions; and
e) there are no matters about which I am aware that would render the making of the order contrary to the public interest. The goals that would be achieved by making the order, namely of efficiency, removal of administrative burdens, the achievement of industrial harmony and improvements in the employment conditions for the Transferring Employees, are all concordant with the public interest.
I propose to make the order which will take effect from the time the Transferring Employees commence employment with Peninsula Health. An order giving effect to this decision is separately issued in PR744091.
DEPUTY PRESIDENT
Determined on the papers
Printed by authority of the Commonwealth Government Printer
<PR744090>
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