Supported Tenancy, Accommodation and Respite Tasmania Inc T/A Star Tasmania Inc
[2016] FWC 222
•18 JANUARY 2016
| [2016] FWC 222 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Supported Tenancy, Accommodation and Respite Tasmania Inc T/A Star Tasmania Inc
(AG2015/1457)
COMMISSIONER LEE | MELBOURNE, 18 JANUARY 2016 |
Application for an order relating to instruments covering new employer and transferring employees.
[1] An application has been made by Supported Tenancy, Accommodation and Respite Tasmania Inc T/A Star Tasmania Inc (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to section 318 of the Fair Work Act 2009 (the Act).
[2] The application seeks an order that the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 1apply to all employees transferring employment from Cosmos Inc. and currently employed under the Cosmos Inc Enterprise Agreement 2014.2
[3] On 26 June 2015 I wrote to the Applicant’s representative (Quartz Consulting) and to the Health Services Union of Australia (HSU). The correspondence advised the parties that I had reviewed the application and supporting documentation. I advised that the application outlined the Applicant’s grounds for the making of the order, but that no affidavit or witness statement was provided to attest to the matters which were asserted in the application. I advised the parties I had determined to list the matter for hearing and required the Applicant to provide evidence at the hearing as to the matters they assert supported the making of the order. Furthermore, I directed the Applicant to provide a copy of this correspondence to the affected employees and for any affected employee to provide their views in relation to this application by 29 June 2015.
[4] On 30 June 2015, I held a hearing and made a decision ex tempore that the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 applies to all employees transferring employment from Cosmos Inc. and currently employed under the Cosmos Inc Enterprise Agreement 2014 from the time at which the employees transfer. What follows are my written reasons for making that Decision.
[5] At the hearing on 30 June 2015, Mr James Eddington on behalf of the HSU advised that its members were supportive of the application being granted. 3 The HSU did not propose to contest the application.
[6] I did not receive any correspondence or contact from any transferring employees.
Legislation
“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.”
Background
[7] The Applicant and Cosmos Inc. determined to merge the two entities under the entity of Supported Tenancy, Accommodation and Respite Tasmania Inc T/A Star Tasmania Inc, the Applicant in this matter. The board determined that the merger is to take effect from 1 July 2015. 4
[8] The Applicant provides mainly residential disability services and Cosmos Inc. provides mainly day support disability services.
[9] Immediately prior to the merger all Cosmos Inc. employees are covered by the Cosmos Inc Agreement 2014 and employees of the Applicant are covered by the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013.
[10] After the merger all employees will be directly employed by the Applicant.
Transferrable instrument
[11] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of section 311(1) of the Act.
[12] Section 312 of the Act details instruments that may transfer:
“312 Instruments that may transfer
Meaning of transferable instrument
(1) Each of the following is a transferable instrument:
(a) an enterprise agreement that has been approved by the FWC;
(b) a workplace determination;
(c) a named employer award.
Meaning of named employer award
(2) Each of the following is a named employer award:
(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;
(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).
Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”
[13] The HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 was approved by the Fair Work Commission on 13 December 2013 and pursuant to section 312(1) of the Act is a transferrable instrument.
Who may apply for an order
[14] The application has been made by the new employer (the Applicant). The requirements of section 318(2) have been met.
Matters the Fair Work Commission must take into account (s.318(3))
Section 318(3)(a) - the views of the new employer and the employees who would be affected by the order
[15] The new employer is the Applicant for this order and it supports the making of the order.
[16] The witness statement of Mr. Doedens tendered during the hearing indicated that it was the view of employees affected by the order, as demonstrated through their formal resolution, that the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 was the preferred industrial instrument to cover transferring employees.
[17] As outlined above, transferring employees were provided with an opportunity to provide their views in relation to this application. I did not receive any correspondence or contact from any transferring employees.
[18] As detailed above, Mr. Eddington on behalf of the HSU advised that its members were supportive of the application being granted. The HSU did not propose to contest the application.
Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
[19] The Applicant submits that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment if the Commission makes the proposed order. A comparison table was provided which detailed the relevant benefits and related arrangements provided for in both agreements.
[20] Mr. Doedens gave evidence at the hearing and his witness statement contained further information regarding the effect on transferred employees.
[21] Having considered all of the material before me, I am satisfied that the transferring employees will not be disadvantaged by an order in relation to their terms and conditions of employment.
Section 318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement
[22] The nominal expiry date for the Cosmos Inc Agreement 2014 is 30 June 2015.
[23] The nominal expiry date for the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 is 30 June 2015.
Section 318(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
[24] Mr. Doedens gave evidence that the purpose of merging the two entities was to continue the full operation of both entities in their current form, but to gain some efficiencies in the back office functions and to enable them to become more sustainable financially in the future. 5
Section 318 (e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
[25] The Applicant made no submissions that they would incur significant economic disadvantage should the orders be made.
Section 318 (f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
[26] The Applicant submitted that the Cosmos Inc Agreement 2014 and the HACSU – Supported Tenancy Accommodation and Respite (STAR) Tasmania Enterprise Agreement 2013 are in very similar terms.
Section 318 (g) the public interest
[27] There is no evidence that the public interest is agitated in this matter.
Conclusion
[28] Taking into account each of the matters set out in section 319(3) of the Act, I am satisfied that the order as sought should be granted.
[29] An Order PR576041 will be issued concurrently with this decision.
COMMISSIONER
Appearances:
R Rollins of Quartz Consulting representing the Applicant
J Eddington for the Health Services Union of Australia
Hearing details:
2015
Melbourne
July 30
1 AE405886
2 AE413430
3 PN87
4 PN39
5 PN39
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576040>
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