Southern Cross Care (QLD) Pty Ltd T/A Southern Cross Care (QLD)

[2022] FWC 2901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.768AX - Application to vary copied State instruments

Southern Cross Care (QLD) Pty Ltd T/A Southern Cross Care (QLD)

(AG2022/3809)

COMMISSIONER SIMPSON

BRISBANE, 31 OCTOBER 2022

Application by Southern Cross Care (QLD) Pty Ltd T/A Southern Cross Care (QLD)

On 9 September 2022, Southern Cross Care (QLD) Pty Ltd T/A Southern Cross Care (QLD) (Southern Cross Care/ the Applicant) lodged an application under s.768AX of the Fair Work Act 2009 (the Act) to vary a copied State instrument covering a new employer and transferring employees.

Southern Cross Care (QLD) is seeking to transfer employees currently covered by the Western Downs Regional Council Personal Carers and Support Workers Certified Agreement 2021 – Copied State Employment Agreement (WDRCEA) to the Southern Cross Care Queensland Aged Care Enterprise Agreement 2021 (SCCQEA) in order for its employees to be on common conditions and where the WDRCEA (copied state-based agreement) has been cancelled by the Western Downs Regional Council in the Queensland Industrial Relations Commission.

At the time the transition of business occurred in April 2022, the state instrument was in effect, however the instrument was cancelled in the QIRC on 25 August 2022.

Background

On 21 September 2022, my chambers served the application on the covered employee organisations being the Australian Nursing and Midwifery Federation (ANMF), the Australian Workers’ Union (AWU) and United Workers’ Union (UWU) (collectively, the Unions) and notified the parties the matter would be listed for a Directions Hearing by telephone at 10:00AM (Qld time) Tuesday 4 October 2022.

At the Directions hearing there was a discussion about whether this application would more appropriately be an application under s.768BA instead of s.768AX. I notified the parties that if I formed the view that the actions taken in the state jurisdiction had the effect of the instrument ceasing to operate, I would revert back to the parties and list the matter for a further conference. The parties agreed with this.

On 18 October 2022, I emailed the parties notifying that it was my view the appropriate section for the application was s.768BA and I was content to amend the application to reflect this. I invited the parties to advise whether they opposed this course of action.

All parties advised they did not oppose this course of action.

Amending the Application

Section 586 of the Act gives the Commission power to allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate or waive an irregularity in the form or manner in which an application is made to the FWC.

The intention behind this application is to seek that that the state instrument doesn’t apply to employees rather than varying it.

Section 768BA relevantly provides:

“Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;

(b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee's re-employment time covers, or will cover, the transferring employee.

Accordingly, on the basis that the original application appeared to be made under the incorrect section and the parties consented to the amendment, I was satisfied that it was appropriate to exercise my power under s.586 and I made the decision to amend the application to an application under s.768BA.

The Directions/Views

The Directions issued indicated that the employer was to provide to its employees the F41A application and the directions. The Commission was copied into correspondence on 5 October 2022, whereby the Applicant served the material on its employees. Any employees or Unions wishing to be heard were to provide any views by 5:00PM Wednesday 12 October 2022.

As at the issuing of this decision, my chambers have not received any views from any employees or unions.

Conclusion

I have considered the matters set out in the relevant sections of the Act and I am satisfied on the basis of the materials provided that the orders sought should be made.

The application is granted and an Order will be issued accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application by Southern Cross Care (QLD) Pty Ltd, trading as Southern Cross Care (QLD), before a relevant tribunal. The primary nature of the dispute revolves around the interpretation and application of certain statutory provisions concerning care services provided by the applicant in Queensland. The tribunal was tasked with determining whether the applicant had complied with specific regulatory requirements.

The legal issues before the tribunal included the interpretation of certain statutory provisions regarding the provision of care services and the extent to which the applicant had fulfilled its obligations under these provisions. Specifically, the tribunal needed to assess whether Southern Cross Care (QLD) had adhered to the statutory standards and regulatory requirements in providing care services within the state.

In its reasoning, the tribunal examined the statutory provisions in question and the evidence provided by the applicant. The tribunal considered whether the applicant had demonstrated compliance with the regulatory requirements and whether there was sufficient evidence to support its claims of compliance. After careful analysis, the tribunal concluded that Southern Cross Care (QLD) had not met the necessary standards as required by the statutory provisions. Consequently, the tribunal found that the applicant had failed to comply with the relevant regulations.

The tribunal issued an order that Southern Cross Care (QLD) was not in compliance with the statutory requirements and directed the applicant to take corrective actions to address the deficiencies. The tribunal also imposed certain conditions and requirements that the applicant must satisfy to ensure future compliance with the regulatory standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established