The Association of Independent Schools of New South Wales Limited T/A AISNSW

[2021] FWC 229

[2021] FWC 229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

The Association of Independent Schools of New South Wales Limited T/A AISNSW
(AG2020/3848)

COMMISSIONER JOHNS SYDNEY, 28 JANUARY 2021

Application for orders relating to instruments covering new employer and transferring employees.

[1] On 11 December 2020, Ravenswood School for Girls Limited, Knox Grammar School Limited, Kinross Wolaroi School Limited, MLC School Limited and Pymble Ladies’ College Limited (the Applicants) made an application pursuant to s.319 of the Fair Work Act 2009 (Cth) (the Act) for an Order that the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2017 and Independent Schools NSW (Support and Operational Staff) Multi-Enterprise Agreement 2017 (the Transferrable Instruments)covers non-transferring employees who will perform, or are likely to perform, the transferring work covered by the Transferrable Instruments. The Application was lodged on behalf of the Applicants by Mr M Carter, Solicitor, of the Association of Independent Schools of New South Wales.

[1] By way of background, a transfer of business within the meaning of s.311 of the Act occurred on 1 January 2021. The transfer of business arrangements are set out in the following table:

OLD EMPLOYER	NEW EMPLOYER
Ravenswood School for Girls	Ravenswood School for Girls Limited
The Uniting Church in Australia Property Trust (NSW) – Knox Grammar School	Knox Grammar School Limited
UCA Kinross Wolaroi School	Kinross Wolaroi School Limited
MLC School	MLC School Limited
The Uniting Church in Australia Property Trust (NSW) – Pymble Ladies’ College	Pymble Ladies’ College Limited

[2] The Applicants are covered by the Educational Services (Teachers) Award 2020 and the Educational Services (Schools) General Staff Award 2020 (the Modern Awards).

[3] In the Form F40 – Application for Orders in relation to a transfer of business, the Applicants sets out the Orders sought (the Proposed Order) as follows:

“ Pursuant to s319(b) of the Fair Work Act 2009 (Cth) (“FWA”), the Applicants seek an order that the Teachers Agreement and the Support Staff Agreement (“Transferrable Instruments”) cover future non-transferring employee who will perform, or are likely to perform, the transferring work for the Applicants (the new employers).”

Relevant legislation

[4] Section 319 of the Act states:

“319 Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.

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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non-transferring employee before the later of the following:

(a) the time when the non-transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.”

Consideration

[5] In answer to question 2.3 of the Form F40, the Applicants set out the grounds upon which the application satisfies the legislative requirements outlined above. I turn now to each of these legislative requirements in turn.

Section 319(3)(a)(i) – the views of the new employer

[6] As the employers are the Applicants in the matter, it is clear that the employers support the application.

Section 319(3)(a)(ii) – the views of the employees who would be affected by the order

[7] No employees will be affected by the Proposed Order as it relates to those who are not yet employed by the Applicants.

[8] In filing the application, the Applicants have attached correspondence from the Independent Education Union of Australia, dated 10 December 2020, which indicates that the Union is supportive of the Proposed Order being made.

[9] This weighs in favour of the Proposed Order being made.

Section 319(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[10] As the Transferrable Instruments contain more beneficial terms and conditions than the Modern Awards, I find that no employees would be disadvantaged by the Proposed Order.

[11] This weighs in favour of the Proposed Order being made.

Section 319(3)(c) – if the order relates to an enterprise agreement—the nominal expiry date of the agreement

[12] The nominal expiry date of both Transferrable Instruments is 21 January 2021.

[13] I consider this a neutral factor.

Section 319(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[14] The Applicant’s position in relation to the impact of productivity of the new employer’s workplace was that the impact would be positive. This was said to be because the transferrable instruments were negotiated with those whom they were originally designed to cover, are tailored to the Applicant’s activities and are therefore better suited to the operations of the new employers than the Modern Awards.

[15] This weighs in favour of the Proposed Order being granted.

Section 319(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[16] The Applicants submitted that they would incur no economic disadvantage if the Proposed Order was granted.

[17] This weighs in favour of the Proposed Order being granted.

Section 319(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[18] The Applicants submitted that the relevant Modern Awards provided for different minimum employment terms and conditions than the Transferrable Instruments. On this basis, it was said that there was little synergy between the Modern Awards and the Transferrable Instruments.

[19] This weighs in favour of the Proposed Order being granted.

Section 319(3)(g) – the public interest

[20] The Applicants submitted that the Proposed Order would facilitate ongoing bargaining between the Applicants and the Independent Education Union of Australia regarding future Enterprise Agreements. Further, it was said that the Order would facilitate the maintenance of the presently approved employment conditions across each new employer. On this basis, the Applicants submitted that the Proposed Order was in the public interest and would satisfy the ‘balance’ referred to in s.309 of the Act.

[21] This weighs in favour of the Proposed Order being granted.

Conclusion

[22] It follows that the Proposed Order should be made.

[23] An Order to this effect [PR726282] has been issued concurrently with this decision

COMMISSIONER

Matter dealt with on the papers

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