PharmaHR Pty Ltd ATF Slade-Epic Employment Trust Trading AS Slade Pharmacy
[2025] FWC 1907
•3 JULY 2025
| [2025] FWC 1907 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
PharmaHR Pty Ltd ATF Slade-Epic Employment Trust Trading AS Slade Pharmacy
(AG2025/1918)
| COMMISSIONER SIMPSON | BRISBANE, 3 JULY 2025 |
Application for orders relating to transferable instrument
PharmaHR Pty Ltd ATF Slade-Epic Employment Trust Trading AS Slade Pharmacy (the Applicant / Slade Pharmacy) has lodged an application under ss.318 and 319 of the Fair Work Act 2009 (the Act) seeking orders from the Commission.
Orders sought
The Applicant seeks orders from the Commission pursuant to s.318 of the Act that the St John of God Health Care (Victorian Hospitals) Health and Allied Services Enterprise Agreement 2013 (the Agreement) does not apply to the employment of employees whose employment transfers to the Applicant from Cura Pharmacy Bendigo, and that in lieu, the Pharmacy Industry Award 2020 (PIA) applies.
The Applicant who is a new employer, or person who is likely to be the new employer is seeking an order pursuant to s.318(1)(a) of the Act. Specifically, the Applicant seeks an order pursuant to s.318(1)(a) of Act that the Agreement, which is, or may be the applicable transferable instrument and would otherwise cover the Applicant (as the new employer) and the Relevant Transferring Employees, does not, or will not, apply or cover the Applicant or the Relevant Transferring employees.
The Applicant proposed that the employment of the Relevant Transferring Employees is covered by the PIA which is the relevant Modern Award that would otherwise apply to the Relevant Transferring Employees, where an Agreement does not otherwise apply.
Background and Submissions
The Applicant submitted that it will be the new employer of the employees who perform pharmacy services at the St John of God Hospital in Bendigo (“the Hospital”) effective 30 June 2025 (“Pharmacy Service”).
The Pharmacy Service is currently operated by Cura Pharmacy Bendigo (“Cura Pharmacy”) who is now the former employer of the transferring employees.
The Pharmacy Service consists of 11 employees as detailed below:
a.Six (6) Pharmacists – Pharmacy Industry Award 2020 (“the PIA”) applies;
b.One (1) Pharmacist Team Leader – PIA applies;
c.One (1) Director of Pharmacy – PIA applies;
d.One (1) Pharmacy technician – PIA applies; and
e.Two (2) Pharmacy Technicians – Agreement applies.
The Applicant submitted that this application only relates to the two (2) Pharmacy Technicians whose employment may otherwise be covered by the Agreement (“the Relevant Transferring Employees”). For the avoidance of doubt, the Applicant confirmed it had made offers of employment to all eleven (11) current employees of Cura Pharmacy. However, this application is primarily concerned with Relevant Transferring Employees, for the reasons outlined below.
a.The Relevant Pharmacy Technicians at one point were direct employees of the Hospital, and the terms and conditions of the Agreement applied, to their employment during this time.
b.In or around 1 July 2014 the Relevant Transferring Employees employment transferred from the Hospital to Cura Pharmacy, who was engaged to provide Pharmacy Services on behalf of the Hospital.
c.The Applicant understands that, for the purposes of section 311 of the Act, the Relevant Transferring Employees had their employment terminated by the Hospital, were subsequently employed by Cura Pharmacy within three months, performed the same or substantially similar work, and that a connection existed between the Hospital and Cura Pharmacy as stipulated by subsection 311(4) of the Act. Accordingly, the Agreement was a transferable instrument for the purposes of section 311 of the Act.
The rationale for the Agreement only applying to the Relevant Transferring Employees, includes, however may not be limited to:
a. For the purposes of this application, the scope of the Agreement is limited to Pharmacy Technicians. While the Applicant acknowledges that the classifications and positions outlined in the Agreement are broader, it is noted that, aside from Pharmacy Technicians, the other roles referenced in the Agreement are not relevant to, nor are they positions that exist or are anticipated to exist, within the provision of the Pharmacy Service.
b. The Agreement applies solely to Pharmacy Technicians whose employment was transferred from the Hospital to Cura Pharmacy, in circumstances where the Agreement is deemed to be a transferable instrument.
c. The other Pharmacy Technician commenced employment directly with Cura Pharmacy in October 2024 and therefore, their employment is covered by the PIA.
d. The Agreement does not extend coverage to the positions of Pharmacist, Pharmacy Team Leader, or Director of Pharmacy. These roles were directly employed by Cura Pharmacy, and accordingly, the PIA applies to all these positions.
The Applicant confirmed that the two Relevant Transferring Employees had accepted the offer of employment, and their employment commenced with the Applicant from 30 June 2025. The Applicant considered that this transfer will be in accordance with s.311 of the Act.
Framework
Section 318(1) of the Act provides that the Commission may, on application by a person or organisation identified in s.318(2), 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 employer covers, or will cover, the transferring employee.”
Section 318 continues:
“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.”
Section 319(1) provides that the Commission 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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.”
In deciding whether to make an order under s.318(1) or s.319(1), the Commission must take into account the matters in ss.318(3) and 319(3) respectively, which I now do.
Views of employees
The Applicant submitted that it has undertaken meaningful consultation with the Relevant Transferring Employees. In particular, the Applicant has:
·Informed the Relevant Transferring Employees of its intention to lodge an application with the Fair Work Commission pursuant to section 318(1)(a) of the Act.
·Explained in detail how the offer of employment with the Applicant does not place the employees at a disadvantage when compared to the terms and conditions under the existing Agreement.
·Advised that the Applicant intends to apply the PIA to their employment upon commencement, along with the special conditions offered by the Applicant.
Following meaningful consultation and after being provided with detailed information regarding the Applicant’s offer of employment, the Relevant Transferring Employees have expressed their agreement and support for this Application in writing.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Agreement would be applicable to the Relevant Transferring Employees only. Accordingly, the Applicant has made offers of employment to the Relevant Transferring Employees that ensure the terms and conditions of their Employment Contracts, underpinned by the PIA, do not, on balance, disadvantage them when compared to the benefits provided under the Agreement.
Wages
In accordance with the Agreement, the highest level for a Pharmacy Technician is Pharmacy Technician Level 4.
The Applicant interprets that, as of 1 July 2016, the highest weekly rate for the relevant position under the Agreement was $887.46, equating to an hourly rate of $23.25. Notably, the highest weekly rate for any position under the Agreement from that date was $1,097.56, which corresponds to an hourly rate of $28.88.
Noting that the rate under the Agreement falls below the current national minimum wage, the Applicant highlights that the current rate for a Pharmacy Assistant Level 4 under the PIA is $1,074.70 per week, equating to an hourly rate of $28.28.
The Applicant was informed by Cura Pharmacy that the current hourly rate for the Relevant Transferring Employees is $33.00 per hour.
Upon commencement of employment with the Applicant, the Pharmacy Technicians will receive an increased hourly rate of $40.50.
Accordingly, the Applicant is confident that, when compared to the Agreement, the Relevant Transferring Employees are receiving a significantly higher rate of pay and, as such, will not be disadvantaged.
Other Benefits
The terms and conditions of the Applicant’s offer of employment to the Relevant Transferring Employees preserve and incorporate the following entitlements from the Agreement into their employment contracts, effectively “grandfathering” these provisions:
Personal/Carers Leave
Long Service Leave
Redundancy
This means that the Relevant Transferring Employees will continue to receive the entitlements outlined above, as provided for under the Agreement. In addition to the above, the Relevant Transferring Employees will have available to them upon commencement of employment with the Applicant:
In addition to the National Employment Standards (“NES”) Ten (10) weeks paid leave for parental leave for a primary carer and one (1) week paid partner parental leave.
Three (3) days paid compassionate leave per occasion where eligible in accordance with the NES.
Fifteen days (15) paid family and domestic violence leave where eligible in accordance with the NES.
Superannuation is payable on the above benefits.
Accordingly, the Applicant and the Relevant Transferring Employees have agreed that the provision of the above benefits ensures that overall, they will not be disadvantaged compared to the Agreement.
The Applicant is aware that the Relevant Transferring Employees are both part-time workers who currently work within the span of ordinary hours, Monday to Friday. The Applicant does not intend to alter their hours of work or roster arrangements upon commencement of employment. These existing work patterns have been documented in the terms and conditions of their employment. Any change to the hours of work will be by way of consultation, and agreement with the Relevant Transferring Employees.
The Applicant, together with the Relevant Transferring Employees, is of the view that where the Agreement provides for a greater entitlement than the PIA, the higher rates of pay and additional benefits mentioned offered to the Relevant Transferring Employees outweigh any potential disadvantage overall.
Whether the Agreement would have a negative impact on the productivity of the new employer’s workplace
If the Applicant is required to apply the Agreement, it will result in a distinct set of conditions and rules applying to only two employees. This situation would create administrative inefficiencies and additional costs, as it would require the accurate implementation and ongoing compliance with the Agreement, despite most employees at the site being underpinned by the PIA.
The existence of two separate sets of employment conditions would place an undue burden on site managers, pharmacists, and other colleagues, who would be required to manage and administer dual employment frameworks.
The Applicant’s request achieves an outcome that not only ensures the Relevant Transferring Employees are not disadvantaged overall but also allows for the consistent application of the PIA as the underpinning industrial instrument across all employees at the site. This uniformity will simplify processes during the transition and into the future, promoting efficient administration and ongoing compliance which would otherwise be hindered should the Agreement continue to apply.
Finally, the Agreement is a transitional instrument that is now outdated which does not align, nor reflect, the operational practices or structure of the Applicant’s pharmacy business.
Whether the new employer would incur significant economic disadvantage because of the transferable instrument covering the new employer
The Applicant does not contend that the continued application of the Agreement would result in significant economic disadvantage. Rather, the Applicant has offered the Relevant Transferring Employees significantly higher hourly rates and has incorporated key benefits from the Agreement into their employment contracts.
Therefore, the primary purpose of this application is not cost avoidance, but rather achieve greater efficiency, consistency, and ease of administration and compliance, outlined above.
The degree of business synergy between the transferable instrument (Agreement) and any workplace instrument that already covers the new employer
The Agreement varies from the terms and conditions in the PIA and the employees would be working alongside each other on different terms and conditions of employment. If the application is granted there would be no other workplace or industrial instrument that would apply other than the PIA.
The Public Interest
The Applicant does not consider that this orders request is in anyway contrary to the public interest.
Consideration
The Health Workers Union (HWU) attended the directions hearing on 3 July 2025, and confirmed it did not oppose the application, nor did it have any additional submission to make.
I have considered the submissions and am satisfied that employees will not be disadvantaged overall if the orders sought are granted.
There are no public interest grounds that would prevent the granting of the application.
Conclusion
Taking into account the matters in ss.318(3) and 319(3), I have decided that it is appropriate to grant the application. An order will be issued separately in PR788874.
COMMISSIONER
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