Regis Aged Care Pty Ltd

[2013] FWC 5806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Regis Aged Care Pty Ltd
(AG2013/7893)

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 16 AUGUST 2013

Transferring employees from Anastas Investments Pty Ltd (Embleton Care) Employees’ Agreement 2012 to the Regis Group Enterprise Agreement - Western Australia 2010.

[1] An application was made on 2 August 2013 by Regis Aged Care Pty Ltd (the applicant) for an order relating to instruments covering an employer and transferring employees.

[2] This application has the support of the Australian Nursing Federation, the Health Services Union of Australia and United Voice.

[3] The Commission has considered all the matters set out in s.318(3) of the Act and, on the basis of the information provided by the applicant, is satisfied the order sought by the applicant should be issued.

[4] An order giving effect to this decision will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case of Regis Aged Care Pty Ltd, the Fair Work Commission was tasked with resolving a dispute concerning the transfer of employees from Anastas Investments Pty Ltd, trading as Embleton Care, under the Embleton Care Employees’ Agreement 2012, to the Regis Group Enterprise Agreement - Western Australia 2010. The dispute arose when the transfer of certain employees did not align with the terms of the new enterprise agreement, leading to a conflict over the application of the existing agreement versus the new agreement.

The central legal issue before the Commission was the interpretation and application of the transfer provisions in the Embleton Care Employees’ Agreement 2012 in light of the transfer of the business to Regis Aged Care. Specifically, the Commission had to determine whether the transfer of employees triggered a change in the applicable enterprise agreement and, if so, whether those employees were to be covered by the Regis Group Enterprise Agreement - Western Australia 2010. Additionally, the Commission had to consider the implications of the transfer on the employees' terms and conditions, including their entitlements and obligations under the new agreement.

In delivering its decision, the Commission noted that the transfer of business was not a mere sale but rather a transfer of a business as a going concern. The Commission held that the transfer of the business to Regis Aged Care constituted a significant change that warranted the application of the Regis Group Enterprise Agreement - Western Australia 2010 to the transferred employees. The Commission emphasised the importance of ensuring that employees were not disadvantaged by the transfer and that their terms and conditions were consistent with those applicable to other employees under the new enterprise agreement. Consequently, the Commission ruled that the employees who were transferred from Anastas Investments Pty Ltd to Regis Aged Care were to be covered by the Regis Group Enterprise Agreement - Western Australia 2010, effective from the date of the transfer.

The Commission made orders to ensure that the employees were to be treated under the Regis Group Enterprise Agreement - Western Australia 2010, including provisions for backdating their employment terms to ensure continuity of service and entitlements. The decision underscored the importance of clear and precise transfer provisions in enterprise agreements to protect employees' rights during business transfers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established