The Northcott Society T/A Northcott Summary

[2023] FWC 1

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Northcott Society T/A Northcott

(AG2022/5569)

Social, community, home care and disability services
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 JANUARY 2023

S.318 - Application for an order relating to instruments covering new employer and transferring employees

The Northcott Society T/A Northcott (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Act) for orders that the MontroseAccess Enterprise Agreement 2015 (Agreement) not cover the Applicant and employees transferring from employment with Montrose Therapy & Respite Services to the Applicant (Transferring Employees) and that such Transferring Employees instead be covered by the Northcott Enterprise Agreement 2021 – 2023. The Agreement nominally expired on 30 June 2017. The Applicant is likely to be the new employer of relevant transferring employees.

The Applicant has filed a witness statement in support of its application, made by Ms Patricia Lorraine Buick, dated 22 December 2022. In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Ms Buick. Specifically, I note that the relevant Transferring Employees support (by majority) the order/s sought by the Applicant, and that such relevant Transferring Employees will not be disadvantaged overall (in their terms and conditions of employment) if the orders sought are made. Further, the Agreement is likely to have a negative impact upon the productivity of the Applicant’s workplace, and there is a lack of business synergy between the Agreement and the work performed by the Applicant and Transferring Employees. I consider that the order sought by the Applicant is in the public interest as it would allow all of the Applicant’s employees to all be employed on consistent terms and benefits, promoting a harmonious, cohesive and productive workplace.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I have determined to exercise my discretion to make the order sought by the Applicant pursuant to s.318(1) of the Act. An order in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Northcott Society T/A Northcott, the applicant, sought orders under section 318 of the Fair Work Act 2009 to ensure that the Montrose Access Enterprise Agreement 2015 would not apply to the applicant and employees transferring from Montrose Therapy & Respite Services to the applicant, the new employer. Instead, the applicant proposed that the Northcott Enterprise Agreement 2021–2023 should apply to these employees. The Fair Work Commission, presided over by Deputy President Boyce, heard this application.

The legal issues before the Commission were whether the applicant was likely to become the new employer of the transferring employees and whether the requested orders would be in the public interest, considering the factors outlined in section 318(3) of the Act. The applicant argued that the Montrose Access Enterprise Agreement 2015 was no longer suitable due to a lack of business synergy and its potential negative impact on the applicant's workplace productivity. The applicant also submitted that the majority of transferring employees supported the requested orders and would not be disadvantaged overall in terms and conditions of employment.

The Commission considered the evidence presented by Ms Patricia Lorraine Buick, who attested that the transferring employees generally supported the applicant's application. The Commission also noted that the Montrose Access Enterprise Agreement 2015 had nominally expired on 30 June 2017. Taking into account the factors in section 318(3) of the Act, the Commission concluded that the applicant was likely to become the new employer of the transferring employees and that the requested orders were in the public interest. The Commission determined that making the orders would result in all of the applicant's employees being employed on consistent terms and benefits, promoting a harmonious, cohesive, and productive workplace.

Consequently, the Fair Work Commission exercised its discretion under section 318(1) of the Act to make the orders sought by the applicant. An order to this effect was issued concurrently with the decision.

The Northcott Society T/A Northcott

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established