Regis Aged Care Pty Ltd T/A Regis

[2015] FWC 669

[2015] FWC 669

FAIR WORK COMMISSION

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 T/A Regis
(AG2015/1706)

COMMISSIONER SIMPSON BRISBANE, 2 MARCH 2015

Application for an order relating to instruments covering new employer and transferring employees.

[1] This is an application pursuant to s.318 of the Fair Work Act 2009 (the Act) by Regis Aged Care Pty Ltd T/A Regis (the Applicant) for an order relating to an instrument covering a new employer and transferring employees.

[2] The Application has been made in the context of a business sale agreement between the Applicant and The Uniting Church in Australia Property Trust T/A Blue Care and Wesley Mission Brisbane (Blue Care). The sale agreement was entered into on 23 December 2014 and involves the Applicant’s acquisition of Blue Care’s Redlynch Glenmead Village Aged Care Facility (Cairns Facility).

[3] Subject to the approval of the Department of Social Services, the acquisition is expected to be completed on 1 April 2015, at which time the Applicant proposes to offer employment to employees who are engaged as registered nurses, enrolled nurses and assistant nurses at the Cairns Facility under the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (AG2013/5827).

[4] The Applicant seeks the following orders:

1. Pursuant to section 318(1)(a) of the Act, the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 will not cover:

a. the Applicant; and

b. Employees engaged asRegistered nurses, enrolled nurses and assistant nurses at The Uniting Church in Australia Property Trust t/a Blue Care and Wesley Mission who are employed at the Blue Care Redlynch Glenmead Village Aged Care Facility, who become transferring employees (as defined in section 311(2) of the Act) (Transferring Employees) following the Applicant’s acquisition of the assets of Blue Care at the Cairns Facility.

2. Pursuant to s 318(1)(b) of the Act, the Regis Aged Care Registered Nurses, Enrolled Nurses and Assistant Nurses Queensland Agreement 2013 (the Regis Agreement)will cover the Transferring Employees.

[5] Section 318 of the Act sets out the circumstances in which an order may be made by the Fair Work Commission (the Commission):

318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC 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 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.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

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.

[6] In support of its application, the Applicant arranged for the conduct of a secret ballot to gain the views of employees who would be affected by the order sought if it were to be made. The outcome of the ballot showed that the majority of Transferring Employees were in support of the order being made.

[7] On 26 February 2015, the Applicant provided a written undertaking to the Commission detailing the mechanism by which they will ensure that the Transferring Employees will not be disadvantaged in their on-going employment with the Applicant. The Applicant submits that it will offer the Transferring Employees employment on terms and conditions overall no less favourable than those that they currently enjoy with Blue Care and will therefore not be disadvantaged by the orders sought.

[8] The Commission, as presently constituted, accepts the Applicant’s undertakings and is satisfied that it is not against the public interest to grant the order sought by the Applicant.

[9] Having read the application and supporting documents, the Commission is satisfied that all the requirements of s.318 of the Act have been met. An order will issue with this decision.

COMMISSIONER

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