The Uniting Church in Australia Property Trust (Q.) T/A Blue Care

[2016] FWC 627

[2016] FWC 627

FAIR WORK COMMISSION

DECISION

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

The Uniting Church in Australia Property Trust (Q.) T/A Blue Care
(AG2016/2098)

COMMISSIONER BOOTH BRISBANE, 30 MARCH 2016

Application for an order that the D&R Community Services Pty Ltd Agreement 2009 will not cover the new employer and transferring employees.

[1] This matter was filed on 15 January 2016 by The Uniting Church in Australia Property Trust (Q.) T/A Blue Care (Blue Care), and concerns an application pursuant to s.318(1) of the Fair Work Act 2009 (the Act) for orders relating to an instrument covering a new employer (the Applicant) and transferring employees from D&R Community Services Pty Ltd.

[2] Blue Care has applied for an order pursuant to s.318(1) to displace the operation of s.313(1) in relation to the D&R Community Services Pty Ltd Agreement 2009 and further to ensure that the transferring employees from D&R Community Services Pty Ltd at the Ny-Ku Byun Aged Care Facility in Cherbourg Qld are covered by the existing industrial instruments, the Blue Care/Wesley Mission Brisbane Administration Employees Enterprise Agreement 2013 and Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013, which currently covers Blue Care’s employees.

[3] A telephone conference was convened on 4 February 2016 and in attendance were Blue Care and The Australian Workers’ Union; Australian Municipal, Administrative, Clerical and Services Union: United Voice; and the Australian Nursing and Midwifery Federation. The United Voice raised concerns with the application, in particular the entitlements of the transferring employees.

[4] Directions were issued and parties were directed to provide submissions and advised that the matter is to be determined on the papers.

[5] Blue Care provided submissions on 19 February 2016 as directed by the Fair Work Commission. They submitted that the affected employees were given copies of the 2 agreements for viewing at the same time. The affected employees were requested to provide their views and support for the application and 21 of the 25 affected employees indicated that they supported the application.

[6] United Voice emailed the Commission on 26 February 2016 to advise that after considering Blue Care’s material they have no objections to the application being granted. However, they did request that the application be amended to correctly identify the facility.

[7] Submissions or correspondence was not received from the remaining employee organisations.

[8] In accordance with s.311(1) of the Act, a transfer of business has occurred. The transferring employees were covered by the D&R Community Services Pty Ltd Agreement 2009 being a collective agreement approved by the Workplace Authority. A collective agreement is a transferable instrument by operation of the Act s.312(1)(a). Section 313(1) provides that a transferable instrument that covered the old employer and the transferring employees immediately before the termination of the employment will cover the new employer (being the Applicant). The operation of these sections means that Blue Care (the new employer) would be covered by the D&R Community Services Pty Ltd Agreement 2009 in relation to the transferring employees, however s.313(3) operates subject to s.318(1). Pursuant to s.318(1), the new employer has sought that the enterprise agreements that cover its existing workforce also cover the new transferring employees.

Relevant legislation

[9] Section 313 provides:

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

....

(3) This section has effect subject to any FWA order under subsection 318(1).

[10] Section 318 provides:

318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA 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) FWA 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 FWA must take into account

(3) In deciding whether to make the order, FWA 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.

CONCLUSION

[11] On balance, taking into account each of the matters stipulated at s.318(3), I am satisfied that the Orders sought should be granted.

[12] Separate Orders will issue. The Orders will come into operation, in accordance with s.318(4).

COMMISSIONER

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