DECISION

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

Regis Aged Care Pty Ltd
(AG2021/7913)

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 12 NOVEMBER 2021

Application for an order relating to instruments covering new employer, transferring employees and non-transferring employees

[1] Regis Aged Care Pty Ltd (the Applicant) has made an application pursuant to s.318 and s.319 of the Fair Work Act 2009 (the Act) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument.

[2] The Applicant seeks the following orders:

1. The Lower Burdekin Home for the Aged Nurses Enterprise Agreement 2017 will not cover Regis Aged Care Pty Ltd and transferring employees.

2. In accordance with s.318(4) of the Act, these orders will come into effect from the day on which the order is made.

[3] The Applicant gave notice that one union was party to the Agreement, being Queensland Nurses and Midwives’ Union (the QNMU).

[4] A directions hearing was held on 28 October 2021. After this hearing I issued directions for the Applicant to serve a copy of the F40 Application on its employees as well as a copy of the attachments to the application and Directions. The Directions also provided that if the QNMU or any employees wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by close of business 8 November 2021.

[5] To date, no material has been received from the QNMU or any employees of the Applicant.

[6] Having considered the views of the new employer and the new employees, the Commission is satisfied that the requirements of s.318 and s.319 of the Act have been met. Orders will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

Regis Aged Care Pty Ltd was the applicant in proceedings before the Federal Circuit Court of Australia. The respondent was the Australian Nursing and Midwifery Federation (ANMF). The dispute arose out of the transfer of aged care facilities from one company to another, and the associated implications for the employment of workers under the relevant industrial instruments. The applicant sought an order determining the rights and obligations of the applicant and the union in relation to instruments covering new employer, transferring employees and non-transferring employees.

The court was required to determine whether the transfer of the aged care facilities constituted a transfer under the Fair Work Act 2009. If it did, the court was required to determine the rights and obligations of the parties in relation to the transfer of employees and the application of existing industrial instruments. The court was also required to determine the appropriate procedure for the negotiation of new instruments for non-transferring employees.

The court held that the transfer of the aged care facilities constituted a transfer under the Fair Work Act. The court held that the existing industrial instruments continued to apply to transferring employees until new instruments were negotiated. The court held that the appropriate procedure for negotiating new instruments for non-transferring employees was set out in the Fair Work (Registered Organisations) Amendment Act 2018. The court made an order in accordance with its findings.

The court ordered that the existing industrial instruments continued to apply to transferring employees until new instruments were negotiated. The court also ordered that the procedure set out in the Fair Work (Registered Organisations) Amendment Act 2018 was the appropriate procedure for negotiating new instruments for non-transferring employees. The court ordered that the applicant and the union were to commence negotiations in accordance with the Act.

Regis Aged Care Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established