RACGP Training Services Limited
[2023] FWC 135
•2 FEBRUARY 2023
| [2023] FWC 135 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
RACGP Training Services Limited
(AG2022/5456)
| Educational services | |
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 2 FEBRUARY 2023 |
Application for an order relating to instruments covering new employer and non-transferring employees
On 21 December 2023, RACGP Training Services Limited filed an application (the Application) in the Fair Work Commission (Commission) pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth) (the Act). The Application is made in respect of the application of The RACGP Enterprise Agreement 2022[1] (the Agreement) to non-transferring employees.
The Agreement was approved on 28 November 2022 and has a nominal expiry date of 30 June 2026.
Background
RACGP Training Services Limited (the Applicant), is a wholly owned subsidiary of the Royal Australian College of General Practitioners (RACGP). The functions of the RACGP include, inter alia, the development and implementation of education, training and assessment for general practitioners and general practitioners in training in accordance with the RACGP educational framework. RACGP employs Training Employees to perform activities supporting education, training and assessment of general practitioners and general practitioners in training.
On 1 February 2023, the functions of RACGP expanded to include the delivery of the Australian General Practice Training program (AGPT), an Australian Government funded program training medical registrars in general practice. RACGP and separately the Australian College of Rural and Remote Medicine became responsible for the delivery of all aspects of AGPT.
On 1 February 2023, the Applicant commenced the management and delivery of all education training and assessment functions on behalf of the RACGP, including AGPT. As part of the change, Training Employees (Transferring Employees) will cease employment with RACGP and commence employment with the Applicant.
For the purposes of sub-s.311(6) of the Act, the Applicant submits there is a connection between the RACGP and the Applicant as they are associated entities. It submits that a transfer of business pursuant to s.311 of the Act occurred on 1 February 2023.
The Agreement covers and applies to RACGP and the National Tertiary Education Industry Union (NTEU). Clause 2.2.2 of the Agreement provides that the Agreement covers employees employed in Classification Levels A to F as defined in the Agreement. The Agreement does not apply to any employee in receipt of a salary greater than the highest prescribed by the Agreement.
The Applicant submits the Transferring Employees comprise of 17 employees performing clerical or administrative roles that fall within the classifications covered by the Clerks - Private Sector Award 2020 (Clerks Award) and other employees who are not covered by a modern award. The education, training and assessment work (Transferring Work) the Transferring Employees will perform for the Applicant will be the same, or substantially the same, as the work the Transferring Employees perform for RACGP.
The Applicant submits in the absence of the order sought, after the transfer of business, any new and existing employees employed by the Applicant, performing clerical or administrative roles (Non-Transferring Employees) would otherwise be covered by the Clerks Award and not the Agreement.
The purpose of the present application is to ensure the Agreement will cover the Applicant and its’ Non-Transferring Employees in relation to the Transferring Work, and continue to cover Transferring Employees who perform the Transferring Work.
Legislation
Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.
Section 311(1) of the Act defines “transfer of business” and s.312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the Non-Transferring Employee.
Consideration
I am satisfied that there will be a transfer of business between RACGP and the Applicant for the purposes of s.311(1) of the Act as employees of RACGP will cease to be employed by it and will be engaged by the Applicant to perform the same work on substantially the same terms and conditions of employment.
I am also satisfied the Agreement is a transferable instrument for the purposes of s.312(1)(a) of the Act.
I further note that in a letter dated 21 December 2022, the NTEU acknowledged a transfer of business under Part 2-8 of the Act has occurred. Further, the NTEU supports the Application, submitting that the orders sought would provide Non-Transferring Employees with the more beneficial employment terms and conditions of the Agreement, than if the Clerks Award applied.
In deciding whether to make orders of this kind, the Commission must take into account the factors set out in s.319(3) of the Act. I will deal with each of those matters separately.
s.319(3)(a) - The views of the new employer and the employees who would be affected by the order
The Applicant submits it intends to engage employees employed in positions falling within Classification Levels A to F of the Agreement on common terms regardless of whether they are Transferring Employees or Non-Transferring Employees. It further submits by granting the order sought, Non-Transferring Employees will receive the higher rates of pay and other beneficial terms and conditions provided under the Agreement. The Applicant submits it seeks to avoid potential unfairness associated with applying different sets of terms and conditions to employees performing the same work.
On the basis of the materials before me I am satisfied the existing Non-Transferring Employees were provided with materials explaining the transition to the Agreement and the details of the Application. The evidence before me supports the submission that representatives of the Applicant consulted with and sought the views of the NTEU and Non-Transferring Employees. No objections were received in relation to the proposal to extend the application of the Agreement to existing Non-Transferring Employees and the NTEU is in support of the Application.
s.319(3)(b) - Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Applicant submits that no employee would be disadvantaged in their terms and conditions of employment if the Agreement were to cover Non-Transferring Employees. It further submits the Agreement provides superior entitlements to the terms and conditions of the alternative instrument, being the Clerks Award.
I agree with the Applicant’s submission and consider that the employees would not be disadvantaged in relation to the terms and conditions of their employment should I make the order sought.
s.319(3)(c) - The nominal expiry date of the agreement
I note the Agreement has a nominal expiry date of 30 June 2026 and consider that the granting of the proposed orders would not disadvantage employees.
s.319(3)(d) - Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant submits there may be a negative impact on productivity if the order is not made and the Agreement does not cover Non-Transferring Employees as two populations of employees would be performing the Transferring Work under different terms and conditions of employment.
There is nothing to suggest that there would be a negative impact on productivity if the order sought was made, and I am satisfied that there will be no such negative impact.
s.319(3)(e) - Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
The Applicant submits that it would not incur any significant economic disadvantage if the Agreement was to cover the non-transferring employees.
I am satisfied that if the order sought were made, the Agreement’s coverage of Non-Transferring Employees will not cause any significant economic disadvantage to the Applicant.
s.319(3)(f) - The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
The Applicant submits there would be a risk of industrial disharmony if the Agreement were to apply to Transferring Employees and certain Non-Transferring Employees, and the Award were to apply to others in the same cohort of employees performing similar work.
I accept there are a number of differences between the terms and conditions of employment under the Agreement and the Clerks Award. If the proposed order is granted it is likely to enhance the degree of synergy of the business and promote industrial harmony.
s.319(3)(g) - The public interest
It is not apparent that it would be against the public interest to issue the order sought. Granting the orders sought would enable the Applicant to provide consistency in relation to the employment terms and conditions. Non-Transferring Employees would be afforded the benefit of the more favourable terms and conditions of the Agreement than they would otherwise receive if covered by the Clerks Award.
Conclusion
Having considered each of the matters outlined in s.319(3) of the Act and taking into account all of the circumstances, including the fact that the NTEU support the Application, I am satisfied that the conditions for making the order in the terms sought have been met. The Application is granted.
An order [PR750188] will be issued separately to this decision.
COMMISSIONER
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