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

[2022] FWC 2901

[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)

1. 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.

1. 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.

1. 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

1. 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.

1. 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.

1. 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.

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

Amending the Application

1. 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.

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

1. 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.

1. 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

1. 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.

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

Conclusion 

1. 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.

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

COMMISSIONER

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