Uniting AgeWell Limited T/A Uniting AgeWell
[2022] FWC 961
•28 APRIL 2022
| [2022] FWC 961 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Uniting AgeWell Limited T/A Uniting AgeWell
(AG2022/1123)
| COMMISSIONER BISSETT | MELBOURNE, 28 APRIL 2022 |
Application for an order relating to instruments covering new employer and transferring employees.
On 13 April 2022 Uniting AgeWell Limited T/A Uniting AgeWell (Applicant) made an application for an order under s.318 of the Fair Work Act 2009 (FW Act) that:
(a)The UnitingCare lifeAssist Staff Enterprise Agreement 2015 will not cover Uniting AgeWell Limited or any transferring employees, as defined in Part 2-8 of the Act, who were formerly employed by Uniting (Victoria and Tasmania) Limited and are currently employed by Uniting AgeWell Limited; and
(b)The Uniting AgeWell Victoria ANMF and HWU Enterprise Agreement 2018, will cover Uniting AgeWell Limited and any transferring employees, as defined in Part 2-8 of the Act, who were formerly employed by Uniting (Victoria and Tasmania) Limited and are currently employed by Uniting AgeWell Limited.
The application contained detailed grounds and submissions in support of the application and was accompanied by a witness statement of Ms Tracy Semmens.
In summary, the background to the application is:
·The Applicant provides aged care services in home care, residential and community settings in Victoria and Tasmania.
·In 2017 an entity now known as Uniting (Victoria and Tasmania) Limited (UVT) had transferred to it, pursuant to a Deed, the assets of the UnitingCare network of agencies including UnitingCare lifeAssist (lifeAssist). Pursuant to that Deed, UVT acquired the entirety of lifeAssist’s tangible and intangible assets relating to its home care activities and offered employment to certain lifeAssist employees. Those employees who accepted the offer of employment commenced employment with UVT on 30 June 2017.
·lifeAssist employees were, prior to the transfer to UVT, covered by the UnitingCare lifeAssist Staff Enterprise Agreement 2015 (lifeAssist Agreement) from 11 September 2015.
·At the time of transfer UVT and lifeAssist were associated entities within the meaning of the Corporations Act 2001 (Cth). As a consequence a transfer of business occurred within the meaning of s.311(1) of the FW Act and the lifeAssist Agreement covered UVT and the former lifeAssist employees in their employment with UVT.
·In late 2021 the Applicant and UVT signed an agreement to transfer to the Applicant responsibility for administering UVT’s home care packages. Pursuant to this agreement UVT would cease providing home care services to its clients and the Applicant would assume responsibility for the provision of the services to the same clients. The Applicant was also required to offer employment to five UVT employees (the Transferring Employees), all of whom are covered by the lifeAssist Agreement. All Transferring Employees have accepted the offer of employment with the Applicant.
·The Applicant is covered by the Uniting AgeWell Victoria ANMF and HWU Enterprise Agreement 2018 (UA Agreement).
·The Transferring Employees ceased working for UVT on 31 January 2022 and commenced working for the Applicant on 1 February 2022. The Transferring Employees are performing essentially the same work for the Applicant as they performed for UVT.
·At the time of the transfer UVT and the Applicant were associated entities within the meaning of the Corporations Act. As a consequence, a transfer of business occurred within the meaning of s.311(1) of the FW Act. The effect of this is that the lifeAssist Agreement now covers the Applicant and the Transferring Employees as a result of the operation of s.313(1) of the FW Act.
The Applicant is seeking orders that the UA Agreement and not the life Assist Agreement cover the Transferring Employees.
The Applicant has advised that it has consulted all the Transferring Employees who each supported the making of the application currently before the Commission.
As part of the consultation process with the Transferring Employees the Applicant has offered to maintain additional personal/carer’s leave and birthday leave entitlements as contractual entitlements. The Applicant has also agreed to maintain rates of pay of any Transferring Employee where that rate of pay is higher than provided for in the UA Agreement.
While the Applicant advises that entitlements under the lifeAssist Agreement and the UA Agreement differ considerable, the Applicant says that the provisions of the UA Agreement are overall more beneficial than those of the lifeAssist Agreement such that the transferring employees will not be disadvantaged.
The lifeAssist Agreement has a nominal expiry date of 30 June 2017 while the UA Agreement has a nominal expiry date of 30 September 2021.
The Applicant contends that the continued application of the lifeAssist Agreement would have a negative impact on the productivity of the Applicant’s workplace. There are a substantial number of employees doing the same work as the Transferring Employees who are covered by the UA Agreement. Discontent and disputation may arise from the application of two different agreements to employees doing essentially the same work. Further, the Applicant would have to undertake manual processing of pay and entitlements for the transferring employees if the order is not made. The continuation of manual processing will add costs for the Applicant.
The Applicant submits that there is little synergy between the two agreements.
The Applicant submits that it is in the public interest to grant the orders sought. It says that, in taking over the administration of UVT’s home care packages, it can streamline service delivery, ensure consistent treatment of employees and allow clients whose home care agreements have been transferred to benefit from the Applicant’s expertise and operational knowledge. This will result, the Applicant submits, in improvements on the provision of aged care services.
Statutory provisions
Section 318 of the FW Act relates to the application sought by the Applicant. Section 318(3) of the FW 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. These documents outline the factual 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 by virtue of the operation of the FW Act, if the orders sought were not made, the Transferring Employees would continue to be covered by the lifeAssist Agreement.
Having examined and considered the application and the accompanying materials, and taking into account the provisions of s.318(3)(a)-(g) of the FW Act, I am satisfied that it is appropriate to make the orders sought under s.318(1)(a)-(b) of the FW Act.
Pursuant to s.318 of the FW Act I intend to order that:
(a)The UnitingCare lifeAssist Staff Enterprise Agreement 2015 will not cover Uniting AgeWell Limited or any transferring employees, as defined in Part 2-8 of the Act, who were formerly employed by Uniting (Victoria and Tasmania) Limited and are currently employed by Uniting AgeWell Limited; and
(b)The Uniting AgeWell Victoria ANMF and HWU Enterprise Agreement 2018, will cover Uniting AgeWell Limited and any transferring employees, as defined in Part 2-8 of the Act, who were formerly employed by Uniting (Victoria and Tasmania) Limited and are currently employed by Uniting AgeWell Limited.
In accordance with s.318(4) of the FW Act, the order[1] I issue will have effect from the time when the Transferring Employees become employed by the Applicant or the date of the order, whichever occurs later.
COMMISSIONER
[1] PR740769
Printed by authority of the Commonwealth Government Printer
PR740765>
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