Ultrarad Pty Ltd T/A Queensland X-Ray
[2023] FWC 1561
•29 JUNE 2023
| [2023] FWC 1561 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Ultrarad Pty Ltd T/A Queensland X-Ray
(AG2023/2019)
| COMMISSIONER SIMPSON | BRISBANE, 29 JUNE 2023 |
Application for an order relating to instruments covering new employer and transferring employees
An application has been made by Ultrarad Pty Ltd T/A Queensland X-Ray (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to s.318 of the Fair Work Act 2009 (the FW Act).
Orders Sought
The Applicant is seeking orders that:
(a)Pursuant to s.318(1)(a) of the Fair Work Act 2009 (Cth), that the Commission orders that The Hunter Imaging Group Enterprise Agreement 2021 does not, and will not, cover Ms Stacy Siska in relation to her employment with Ultrarad Pty Ltd.
(b)Pursuant to s. 318(4) of the Fair Work Act 2009 (Cth), order 1 comes into effect at the time Ms Siska commences employment with Ultrarad Pty Ltd.
Jurisdictional Background
For the reasons set out below, the Applicant submitted the Commission has jurisdiction to make the orders sought by Queensland X-Ray under s.318(1)(a) of the FW Act.
Relevantly:
· pursuant to s.318(2) of the FW Act, the Commission can only make the order sought under s.318(1)(a) of the FW Act on application by the new employer or a “transferring employee.”.
· an order under s.318(1)(a) can be made if a “transferrable instrument” “would be likely to” “cover the new employer and a transferring employee” because of s.313(1)(a) of the FW Act;
· section 313(1)(a) of the FW Act provides that if a “transferrable instrument” covered “the old employer and a transferring employee immediately before the termination of the transferring employee’s employment” then “the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time the transferring employee becomes employed by the new employer”,
· a “transferring employee” is defined in s.311(2) as an employee who satisfies the requirements of s. 311(1)(a),(b) and (c) of the FW Act; and
· under s. 312(1)(a), a “transferrable instrument” is an enterprise agreement.
Ultrarad Pty Ltd t/a Queensland X-Ray and Hunter Imaging Pty Ltd (Hunter Imaging) are both constitutional corporations, and within the coverage of the FW Act. Both Queensland X-Ray and Hunter Imaging are employers within the meaning of the FW Act.
Queensland X-Ray and Hunter Imaging are related entities part of Sonic Healthcare group of companies. As such Queensland X-Ray and Hunter Imaging are associated entities within the meaning of s. 50AAA of the Corporations Act 2001 (Cth) (see the definition of “associated entity” in s. 12 of the FW Act, s 50AAA(2) and s. 50 of the Corporations Act).
The Applicant submitted Ms Siska is currently substantially employed as a Diagnostic Radiographer at Hunter Imaging. Ms Siska is an employee within the meaning of the FW Act.
The Applicant submitted Ms Siska approached Queensland X-Ray about taking up a role as Diagnostic Radiographer at the Townsville practice, having previously worked for Queensland X-Ray for 3.5 years until December 2020 (when she took up employment at Hunter Imaging). Ms Siska’s family has now had to relocate to Townsville to accommodate her partner’s Defence posting. In the interim, Ms Siska has been on secondment as a Diagnostic Radiographer at Queensland X-Ray Townsville practice from 9 January 2023. Ms Siska has relocated to Townsville long-term, so Ms Siska is keen for employment with Queensland X-Ray in a permanent part- time role. Queensland X-Ray has made an offer of employment to her. A copy of Ms Siska’s offer of employment was attached to this Application. That offer of employment is conditional on an order being made by this Commission under s.318(1) of the FW Act.
It is proposed that when Ms Siska’s employment with Hunter Imaging terminates, she would then commence employment with Queensland X-Ray (and do so within three (3) months of her employment terminating with Hunter Imaging). The Applicant submitted this fact satisfies the requirement of s.311(1)(a) and (b) of the FW Act.
It was submitted that the work Ms Siska will perform for Queensland X-Ray is substantially the same to the work Ms Siska performed for Hunter Imaging. The Applicant submitted this fact satisfies the requirement of s 311(1)(c) of the FW Act.
The Applicant submitted as a result of the corporate relationship between Queensland X-Ray and Hunter Imaging, there is a relevant connection between the two entities for the purposes of s. 311(1)(d) of the FW Act (also see s. 311(6) of the FW Act).
As a result of the matters set out above, and for the purposes of s. 311 of the FW Act, it was submitted that there would be a transfer of business from Hunter Imaging (the old employer) to Queensland X-Ray (the new employer), and Ms Siska would be a transferring employee, on her employment with Queensland X-Ray commencing.
In her employment with Hunter Imaging, the old employer, the HIG EA covers her employment and is a transferrable instrument within the meaning of s. 312 of the FW Act.
Accordingly, the HIG EA is likely to cover Queensland X-Ray and Ms Siska in her employment with Queensland X-Ray.
It was submitted Queensland X-Ray, the employer, has made this Application, as required by s. 318(2) of the FW Act, and as such, the Commission has jurisdiction to make the order, subject to its consideration of matters it must take into account under s. 318(3) of the FW Act.
Background
At Queensland X-Ray, Ms Siska will be engaged as a Health Professional Level 2 Pay Point 3 (Radiographer) under the Health Professionals and Support Service Award 2020 (Award). Ms Siska will be located in the Townsville practice, a location that accommodates for her personal and family needs. As a result, it was submitted that the employment at Queensland X-Ray provides Ms Siska with the work-life balance that she desires.
For many reasons, including those set out below, Queensland X-Ray does not want the HIG EA applying to employees employed in its business. As such, Ms Siska has been offered employment with Queensland X-Ray only on the condition that an order is made under s. 318(1) of the FW Act. If the order is not made, Ms Siska will remain employed at Hunter Imaging.
318(3)(a)(i) – views of Queensland X-Ray
Queensland X-Ray applies for the order under s. 318(1)(a) of the FW Act.
In addition to the matters set out below, and set out in a statement by Jamie Byrnes, Operations Manager which was supplied with the application, Queensland X-Ray seeks an order to facilitate the employment of Ms Siska. If the order is not made, Queensland X-Ray will not employ Ms Siska.
318(3)(a)(ii) – views of Ms Siska
The Applicant submitted that Ms Siska has freely accepted an offer of employment with Queensland X-Ray, fully aware of the basis of the offer, including being that the HIG EA does not transfer. Ms Siska was not obliged to accept the offer. Ms Siska has chosen to accept the offer to accommodate her personal circumstances.
The Applicant submitted that Ms Siska supports the Application for the order. I note this is corroborated by the Statement of Ms Siska submitted with the application.
318(3)(b) – whether Ms Siska will be disadvantaged by the order
The Applicant submitted that the order (and consequently employment with Queensland X-Ray on the terms set out in her offer of employment) provides Ms Siska with a number of advantages in relation to the terms and conditions of her employment with Queensland X-Ray:
(a)she will have permanent employment doing the work she has previously performed;
(b)her rate of pay will increase from her substantive position’s hourly rate of $46.1824 to an hourly rate of $46.35;
(c)her service with Hunter Imaging Group will count as service with Queensland X-Ray, sick leave, annual leave and long service leave entitlements will be transferred to Queensland X-Ray;
(d)she will be entitled to an additional 5 days of annual leave (pro-rated as a part-time employee) in addition to the statutory entitlement of 4 weeks of paid annual leave per year of continuous service (pro-rated as a part-time employee) in accordance with Queensland X-Ray policy. This is a default entitlement which is more beneficial than employees covered by the HIG EA who need to satisfy eligibility criteria as a shift worker to be entitled to the additional 5 days of annual leave;
(e)she will be entitled to paid parental leave at Queensland X-Ray which is not an entitlement under the HIG EA. The entitlement at Queensland X-Ray is twelve (12) weeks of paid parental leave;
(f)she will enjoy greater career prospects and advancement. The location of Townsville as a regional area also presents greater opportunities for career advancement and growth, and long-term relocation to Townsville means she will be able to take advantage of these opportunities for her career advancements; and
(g)she will have greater stability of lifestyle in Townsville as her partner who works for the Defence force is able to undertake multiple postings in a row in Townsville which means she will not need to relocate. Long term relocation to Townsville means her daughter will not need to change schools once she schooling.
It was noted by the Applicant that there are however some benefits that Ms Siska will no longer be entitled to receive, but the loss of these benefits has been freely and voluntarily accepted by Ms Siska:
(a)she will no longer be entitled to severance pay as outlined in clause 32.2 of the HIG EA. The redundancy scale in the HIG EA is above the NES. This is a minor disadvantage (though Ms Siska remains entitled to the standard determined to be fair by Parliament). The entitlement to redundancy pay is contingent on the role being made redundant and there being no redeployment opportunities. Ms Siska accepts that she will not be entitled to this benefit as part of accepting the role at Queensland X-Ray. Further the increased redundancy entitlement is a benefit not enjoyed by employees at Queensland X-Ray (who are subject to the NES); and
(b)Ms Siska will also be required to undergo a probationary period of six months upon commencement of her permanent part-time contract at Queensland X-Ray.
318(3)(c) – nominal expiry date
The HIG EA which currently covers Ms Siska has a nominal expiry date of 3 August 2024.
318(3)(d) – negative impact on productivity
The Applicant submitted that this consideration has no application on the facts of this matter.
318(3)(e),(f) – economic disadvantage and degree of business synergy
The Applicant submitted the transfer of the HIG EA to Queensland X-Ray will result in additional administrative burdens in administrating different terms and conditions compared to employees at Queensland X-Ray. Queensland X-Ray’s payroll and rostering systems have been set up in accordance with the Award.
Queensland X-Ray and Hunter Imaging are distinct and different entities. Whilst the industry in which they operate are aligned, the macro conditions are vastly different due to the size and make up of operations, with Queensland X-Ray being more hospital-based compared to Hunter Imaging.
It was submitted that Ms Siska will be working alongside employees who will not be covered by the HIG EA. For legitimate business reasons, Queensland X-Ray does not want employees working alongside each other, covered by different terms and conditions. It seeks to avoid disparity and discontentment between employees performing similar work and working together.
318(3)(g) – public interest
Given the above, the Applicant contends that it is not against the public interest to grant the order sought by Queensland X-Ray.
The Applicant submitted that it is noted that the making of the order sought is not uncommon in similar situations (for example, see various decisions involving employees seeking employment with Qantas and Jetstar, who obtain the order to facilitate voluntary transfer of employment).
Statutory provisions
Section 318 of the Act relates to the application sought by the Applicant. Section 318(3) of the Act sets out those matters the Commission must have regard to in determining if the orders sought should be granted.
Section 318 provides as follows:
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.
I have reviewed the application documentation and the accompanying material including the Statements provided. These documents outline the circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for a proper basis for the making of the orders sought.
I am satisfied that the requirements of s.318 of the FW Act have been met. Orders will be issued with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR763675>
0
0
0