St Vincent’s Care Services Ltd T/A St Vincent’s Care Services

[2021] FWC 6371

[2021] FWC 6371

FAIR WORK COMMISSION

DECISION

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

St Vincent’s Care Services Ltd T/A St Vincent’s Care Services
(AG2021/7734)

COMMISSIONER SIMPSON BRISBANE, 18 NOVEMBER 2021

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

[1] St Vincent’s Care Services Ltd (the Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (the Act) seeking an order from the Fair Work Commission (the Commission) relating to a transferrable instrument.

[2] This Application is related to matters AG2021/7668 - Application for termination of the PresCare Support Staff Enterprise Agreement 2011 and AG2021/7670 - Application for termination of the PresCare Nurses Enterprise Agreement 2011.

[3] On 22 October 2021 I issued directions requiring the Australian Workers’ Union (AWU), the United Workers’ Union (UWU) and the Queensland Nurses and Midwives’ Union (QNMU) (collectively, the Unions) to file in the Fair Work Commission, and serve a copy on the Applicant, submissions and/or witness statements in relation to the application by no later than 4.00pm Wednesday, 3 November 2021.

[4] A Hearing was held on 8 November 2021 where the AWU and UWU advised they did not wish to make submissions regarding this application. After the hearing I issued the following directions:

“1.The Applicant is directed to file submissions in relation to legal representation by 5:00pm Wednesday 10 November 2021.

2.The ANMF is directed to file submissions in relation to legal representation by 5:00pm Friday 12 November 2021.

3.Applications AG2021/7668 and AG2021/7670 are adjourned pending the outcome of matter AG2021/7734

4.The ANMF is directed to file evidence and/or submissions in relation to matter AG2021/7734 by 5:00pm Monday 15 November 2021.

5.Matter AG2021/7734 will be listed for Hearing at 10am Thursday 18 November 2021.

6.The Applicant and the ANMF are directed to confer and advise by 12:00pm Wednesday 17 November 2021 whether there will be a requirement to cross examine witnesses. In the event parties advise they don't require cross examination, they must also advise if they are content for the matter to be dealt with on the papers.”

[5] On 12 November 2021, the Applicant wrote to chambers, attaching the following draft consent orders:

A. Pursuant to s.318(1)(a) of the Fair Work Act 2009 (Cth), from the date of this Order the PresCare Support Staff Enterprise Agreement 2011 and the PresCare Nurses Enterprise Agreement 2011 does not cover St Vincent’s Care Services Ltd as the new employer and any employees who have transferred from employment with the old employer PresCare (ABN 85 338 603 114) to St Vincent’s Care Services Ltd;

B. Pursuant to s.318(1)(b) of the Fair Work Act 2009 (Cth), the St Vincent’s Care Services QLD Enterprise Agreement 2018-2021 covers any employees whose employment transferred from the old employer PresCare (ABN 85 338 603 114) to St Vincent’s Care Services Ltd;

C. St Vincent’s Care Services Ltd must pay an employee whose employment transferred from the old employer PresCare (ABN 85 338 603 114) to St Vincent’s Care Services Ltd and who are entitled to a higher base rate of pay under the PresCare Support Staff Enterprise Agreement 2011 or the PresCare Nurses Enterprise Agreement 2011 than under the St Vincent’s Care Services QLD Enterprise Agreement 2018-2021, that higher base rate of pay until such time as such employee becomes entitled under an enterprise agreement which replaces the St Vincent’s Care Services QLD Enterprise Agreement 2018-2021 or by administrative wage increase, to a higher base rate of pay.

[6] The Applicant advised that all parties were in agreement that if I was minded to make the attached draft proposed orders, the parties would be satisfied that the matters are resolved. The Applicant also advised the parties were agreeable to the matter being dealt with on the papers.

[7] The QNMU replied to this correspondence advising it was agreeable to this course of action, subject to the withdrawal of the applications in AG2021/7668 and AG2021/7670. It also advised it was agreeable to the matter being dealt with on the papers.

[8] The UWU and the AWU also wrote to chambers advising it consented to the orders and to the matter being dealt with on the papers.

[9] Having considered the views of the new employer and the new employees, the Commission is satisfied that the requirements of s.318 of the Act have been met. Orders will be issued with this decision.

COMMISSIONER

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