Presbyterian Care Tasmania

[2015] FWC 854

[2015] FWC 854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768BA - Application for an order about coverage for transferring employees under a state instrument

Presbyterian Care Tasmania
(AG2015/75)

COMMISSIONER ROE SYDNEY, 5 FEBRUARY 2015

Application for an order about coverage for transferring employees under a State instrument.

[1] This is an application filed by Presbyterian Care Tasmania which seeks orders from the Fair Work Commission (the Commission) pursuant to Section 768BA(2)(b)(ii) of the Fair Work Act 2009 (the Act). The relevant facts are:

● The Agreements which cover Presbyterian Care and its employees are the Presbyterian Care Tasmania Incorporated Nurses Agreement 2011 and the Presbyterian Care Tasmania Incorporated General Staff and Unions Collective Agreement 2013 (the Agreements).
● The Tasmanian Government represented by the Tasmanian Health Organisation North conducts an aged care facility at “James Scott Wing” at the North Eastern Soldiers Memorial Hospital at Scottsdale in Tasmania. Presbyterian Care have negotiated an agreement with the Tasmanian Health Organisation North for the transfer of residential and aged care and day care services to Presbyterian Care.
● The Tasmanian Minister is the responsible employer at present and Presbyterian Care will be the employer upon transfer.
● Presbyterian Care seeks orders that the Agreements which cover the new employer, Presbyterian Care Tasmania at the transferring employees’ re-employment time covers or will cover the transferring employees to the exclusion of the copied state instruments that would otherwise have covered the transferring employees because of the operation of Section 768AN(1). The copied state instruments are the relevant State public sector awards and agreements.
● The employees who may be transferring employees are represented by the Australian Nursing and Midwifery Federation (ANF) and the Health Services Union (HSU).
● Agreements have been negotiated between the unions, the Tasmanian Government and Presbyterian Care to support the application to have the Agreements apply to the transferring employees rather than the state public sector instruments. Under these agreements lump sum and other payments will be made to the transferring employees in lieu of salary, rural and remote allowances, long service leave, loss of hours, all purpose allowance, and loss of shift penalties.
● The support of the ANF and HSU has been confirmed by a ballot of members which has been undertaken by the Tasmanian Government.

[2] Section 768BA of the Act is set out as follows:

“768BA FWC orders about coverage for transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re-employment time covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a transferring employee or an employee who is likely to be a transferring employee;
(ii) the new employer or a person who is likely to be the new employer;
(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);
(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

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

(a) the views of:

(i) the employees who would be affected by the order; 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 order in relation to their terms and conditions of employment;

(c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the transferring employee’s re-employment time;

(b) the day on which the order is made.”

[3] I requested and received submissions in support from Presbyterian Care, the ANF and the HSU. I also required that a notice be provided to all affected employees that if they wished to express any view about the application they could forward it by email to my Chambers and that if no submission was received it will be assumed that employees do not oppose the application. Presbyterian Care provided evidence that the notice was provided to affected employees. No objection was received from any employee or other party by the notified date.

[4] After consultation with the parties I decided it was appropriate to deal with the matter without a hearing.

[5] I am satisfied after considering the evidence that:

● As a result of the agreed compensation package no employee will be disadvantaged.
● The affected employees and their unions have been extensively consulted and they have in an informed manner expressed their support for orders that the Agreement apply to their future employment rather than the state instruments.
● It would be inappropriate for the state instruments to apply to Presbyterian Care in that it would be inefficient and unproductive for Presbyterian Care to operate under such different and multiple instruments. However, I am not satisfied that it would cause significant economic disadvantage to Presbyterian Care.
● There is some lack of business synergy between the state instruments and the Agreements. The public sector conditions and regulations are significantly different to those applying in the private and community sector.
● It is in the public interest to approve the application. Failure to approve the application could have an adverse impact upon employment and aged care services in a rural or regional area.

[6] I have decided to grant the orders sought by the applicant. I have taken into account all of the statutory requirements under Section 768BA(3) of the Act. Consequential orders will be published contemporaneously with this decision. The order shall operate in respect to each transferring employee from the later of the day on which the order is made and the date the transferring employee is re-employed.

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