SDN Children's Services NSW

[2020] FWC 6271

[2020] FWC 6271

The attached document replaces the document previously issued with the above code today.

This corrects the spelling of the Applicant’s business name.

Associate to Commissioner Johns

Dated 27 November 2020

[2020] FWC 6271

FAIR WORK COMMISSION

DECISION

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

SDN Children's Services NSW
(AG2020/3287)

Educational services
COMMISSIONER JOHNS	SYDNEY, 27 NOVEMBER 2020

Section 318 – Application for an order relating to instruments covering a new employer and transferring employees.

[1] On 4 November 2020, James Mattson the legal representative for SDN Children's Services NSW (SDN/ Applicant) lodged a Form F40 application for orders in relation to a transfer of employees pursuant to s.318 and s.319 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The circumstances in which the application is made are as follows:

a) The University of New South Wales (UNSW) operates and manages a number of childcare centres.

b) On 9 October 2020 UNSW and SDN entered into a Childcare Management Agreement (CMA) for SDN to operate and manage selected UNSW childcare centres. These included the childcare centres known as Owl’s House, The House at Pooh Corner, Tiggers Honeypot and Kanga House 1. These centres were previously owned and operated by UNSW.

c) In their employment with UNSW, the relevant UNSW employees (Affected Employees) are covered by The University of New South Wales (Professional Staff) Enterprise Agreement 2018 (Transferring Agreement).

d) The Applicant does not want to be covered by the Transferring Agreement. It wants the terms and conditions of employment of the Affected Employees to be governed by the SDN Enterprise Agreement 2016 [AE423359] (SDN Agreement).

e) UNSW proposes to terminate the employment of the Affected Employees by reason of redundancy.

f) Under the CMA, if current UNSWM employees seek employment at SDN, SDN is required to interview and offer employment to these staff. The Applicant has outlined a key reason for them to offer employment to UNSW employees is to ensure, for parents and children that attend the centres, continuity of care for the children. This is very important.

g) SDN has interviewed over 50 UNSW employees for employment with SDN and has made offer of employment to the successful Affected Employees.

h) When employed by SDN, the Affected Employees will be performing the same, or substantially the same, work that they performed for UNSW.

i) If this s 318 application is granted, the successful Affected Employees will commence employment on or before 4 January 2021. The employment of the Affected Employees with SDN is conditional on this application being successful.

[3] On 4 November 2020 the matter was allocated to me. On that day I listed the matter for a mention/directions hearing on 6 November 2020.

[4] After the hearing I issued directions that outlined:

“… [1] The Commission directs that: (a) By no later than 4:00pm (Sydney time) on Wednesday 11 2020, the Applicant must serve a copy of these directions, the Form F40 application and accompanying documents on any affected employee and any relevant employee organisation.

(b) By no later than 4:00pm (Sydney time) on Thursday 12 November 2020, a Director or Officer of the Applicant must file in the Commission a statutory declaration confirming compliance with [1](a).

(c) By no later than 4:00pm (Sydney time) on Wednesday 18 November 2020, any affected employee or any relevant employee organisation which opposes the making of the orders must file in the Commission (by emailing [email protected]) and serve on the Applicant any submissions, statements of evidence or other documents it

[2] If any affected employee or relevant employee organisation opposes the application, the matter will be listed for hearing at 3:00pm (Sydney time) on Wednesday 25 November 2020, at the Commission in Sydney. (FWC Directions)

[5] On 12 November 2020, in accordance with direction [1](b) the Applicant provided a signed copy of the Statutory Declaration of Ms Zarin Medhora, Head of Human Rescources. Ms Medhora set out the steps she had taken to comply with the FWC Directions.

[6] Also on 12 November 2020, the Applicant, filed an amendment to the order it was seeking under s 318 of the FW Act. This amendment sought to also include ‘Kanga House’, which as outlined by Ms Medhora was to address the fact that some employees of Kanga House are seeking employment with SDN. The Applicant also in accordance with direction [2](c) filed a statement of Ms Medhora in support of its application. Two other affected employees wrote to the Commission on 10 November 2020 and 17 November 2020 outlining their support for the making of the order.

[1] To date, no submissions in opposition to the order sought have been received. As a result, the hearing that was listed for , 25 November 2020 was vacated.

[2] Having considered the material provided by the Applicant, I am satisfied that all the requirements of s.318 and s.319 of the FW Act have been met and an order in the terms sought should be made.

[3] An order [PR724785] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR724783>

 1   The order originally sort did not included Kanga House However an amended order was filed on 12 November 2020 seeking to also include Kanga House as staff from this Childcare centre had sought employment with the Applicant.