Uniting (NSW.ACT) T/A Uniting

[2021] FWC 5931

[2021] FWC 5931

FAIR WORK COMMISSION

DECISION

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

Uniting (NSW.ACT) T/A Uniting
(AG2021/6794)

Aged care industry
COMMISSIONER JOHNS	SYDNEY, 23 SEPTEMBER 2021

[1] This is an application pursuant to s.318 of the fair Work Act 2009 (Act) made by Uniting (NSW.ACT) T/A Uniting (Applicant/Uniting) seeking an Order from the Fair Work Commission (Commission) that a transferrable instrument, being the Bupa Aged Care Australia, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales Enterprise Agreement 2018 (the Agreement) not apply to the employees employed by Bupa Aged Care Australia Pty Limited (Bupa) at the aged care facilities located in Berry, Eden, Tumut and Griffith.

[2] The application was supported by a statutory declaration made by Victoria Sales, Employee Relations Lead for Uniting, dated 19 August 2021. Ms Sales provided a further statutory declaration and submissions in support of the application on 7 September 2021.

[3] Section 318 of the Act sets out the circumstances in which an Order may be made by the Commission:

“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) 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.”

[4] The Commission will now consider each of the matters it is required to consider under s.318(3).

s.318(3)(a)(i) - the views of the new employer

[5] The applicant submitted that it is essential to the ongoing viability of the Bupa Sites that the Uniting Enterprise Agreement apply to the Transferring Employees rather than the Bupa Enterprise Agreement for the following reasons:

1. “The Bupa Sites have, on a number of occasions since 2018, failed to meet the Aged Care Quality Standards (‘Accreditation Standards’). In March 2018 the accreditation of the Bupa Berry Site was revoked for a period and the site was unable to operate.

2. Following an assessment conducted on 26-28 February 2019 a delegate of the Aged Care Quality and Safety Commissioner made a decision that the Bupa site at Eden failed to meet 22 expected outcomes in the Accreditation Standards. On 13 March 2019 a decision was made that failure to meet two of these expected outcomes placed the safety, health or wellbeing of a consumer of the service at serious risk. The Department of Health was therefore notified.

3. The applicant anticipates that it will require a large amount of time and resources for the Bupa Sites to ensure ongoing compliance with the Aged Care Quality Standards. It is therefore highly important that the sites operate as efficiently and cost-effectively as possible.

4. It is comparatively less profitable to provide aged care services in remote and regional areas. Each of the Bupa Sites is located in a regional area. For the respondent to continue to provide aged care services in those regional areas, it is essential that the Bupa Sites operate as efficiently as possible.

5. The applicant says that there would be a substantial cost in establishing the Bupa Enterprise Agreement within the administration systems of the applicant. The cost of administering the Bupa Enterprise Agreement for the 4 sites and a different enterprise agreement for the balance of the applicant’s sites would substantially increase the costs for the applicant and may ultimately mean the Bupa Sites remain unprofitable.” 1

s.318(3)(a)(ii) - the view of the employees who would be affected by the Order

[6] The applicant submitted that:

1. “On 26 August 2021 the applicant arranged for the Application, accompanying documents and the Directions to be served on the Transferring Employees;

2. As part of the correspondence to the Transferring Employees the applicant requested that if the Transferring Employees had any views on the Application that they should provide these to the applicant by 30 August 2021 to the dedicated email address;

3. The applicant also requested that if the HSU and NSWNMA had any views on the application that these be provided to the applicant by 30 August 2021;

4. … The applicant has received no correspondence from the Transferring Employees indicating that they oppose the Application. Further, the applicant has received no correspondence from the HSU and/or the NSWNMA opposing the Application. The applicant also notes that the HSU and NSWNMA were also parties to the Uniting Enterprise Agreement.” 2

s.318(3)(b) - whether any employees would be disadvantaged by the Order in relation to their terms and conditions of employment

[7] The applicant submitted that:

1. “The applicant has conducted extensive analysis of the Bupa Enterprise Agreement and the Uniting Enterprise Agreement. The applicant engaged independent auditor and accounting firm, Stewart Brown, to conduct an analysis of the Bupa Enterprise Agreement and the Uniting Enterprise Agreement.” 3

2. “The report of Stewart Brown concluded that the Transferring Employees would not be disadvantaged as the Uniting Enterprise Agreement is more favourable than the Bupa Enterprise Agreement for the majority of rates and conditions.

3. The Maintenance Officer, Level 6 was a classification when mapped across from the Bupa Enterprise Agreement to the Uniting Enterprise Agreement which indicated a negative variance in the base rate of pay.

4. The undertakings proposed in the Further Statutory Declaration of Ms Sales ensure that the existing base rate of pay for the relevant employees will be maintained by the applicant, until such time as the rates contained within the Uniting Enterprise Agreement exceed those of the employees.

5. … The Assistant in Nursing positions within the Uniting Enterprise Agreement contain a lower rate of pay than those contained under the Bupa Enterprise Agreement. It is therefore proposed that the Assistants in Nursing would retain their titles of Assistants in Nursing however be paid as Care Service Employees, Grade 2.

6. The applicant is therefore prepared to provide an undertaking to the effect that the Transferring Employees employed as Assistants in Nursing will retain their classifications and titles however be paid as Care Service Employees.” 4

[8] The Applicant provided the proposed undertakings described above on 21 September 2021.

s.318(3)(c) - if the Order relates to an enterprise agreement—the nominal expiry date of the agreement

[9] The nominal expiry date of the Agreement is 31 December 2021.

[10] The Applicant submitted that it is seeking to commence re-negotiations of the Uniting Enterprise Agreement. Further, that it is imperative that the Agreement does not apply to the Transferring Employees after 1 October 2021 so that the Transferring Employees may be involved in the negotiations of any new Uniting Enterprise Agreement.

s.318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[11] The applicant submitted that the transferrable instrument would have a negative impact on the productivity of the new employer’s workplace for the following reasons:

1. “The applicant maintains that having two different agreements in the aged care sector of the applicant’s business would create disharmony in the workplace of the applicant. The applicant employs 4,700 employees in residential aged care, all of whom are covered by the Uniting Enterprise Agreement. If the application is not granted the applicant would have 4,700 employees employed pursuant to one enterprise agreement and a separate and distinct agreement for the 335 Transferring Employees.

2. The Uniting Enterprise Agreement contains substantially higher rates of pay than those contained under the Bupa Enterprise Agreement. The Uniting Enterprise Agreement also contains significantly more favourable terms and conditions, particularly with respect to long service leave and paid parental leave.

3. The significant differences in the rates of pay and terms and conditions of employment has the ability to lead to disharmony in the workplace and therefore a loss of productivity for the applicant. It would also result in the Transferring Employees accruing leave at a slower rate than the existing employees having regard to the more favourable leave entitlements under the Uniting Enterprise Agreement.” 5

s.318(3)(e) & (f) – economic disadvantage and degree of business synergy

[12] In relation to economic disadvantage the Applicant submitted that:

1. “The applicant would incur significant economic disadvantage as the Bupa Enterprise Agreement would need to be incorporated into the applicant’s payroll, rostering and human resources systems. The cost to achieve this incorporation would be substantial and is estimated by the applicant at $300,000.00.

2. In addition to incorporating the Bupa Enterprise Agreement into the applicant’s systems, the applicant would also incur further costs in training a number of staff in the administration of the Bupa Enterprise Agreement.

3. The applicant conservatively estimates that at least 30 employees would need to receive further training in order to administer the Bupa Enterprise Agreement including employees in the Payroll Team, Human Resources Business Partnering Team, Employee Relations and HR Advisory Team and the Rostering (HR Systems) Team of the applicant.

4. In addition, a further number of employees would need to be trained in the transferable instrument in order to ensure the applicant was compliant with the Bupa Enterprise Agreement.” 6

[13] In relation to degree of business synergy the Applicant submitted that:

1. “The Uniting Enterprise Agreement is centred on the provision of care based upon the Household Model. The Household Model aims to provide residents with flexibility and choice when it comes to the way that they live. The model centres around clusters of up to 20 residents known as a ‘household’ whereby a team of Care Workers provide holistic and response support under the leadership of a Homemaker.

2. The classification structure in the Uniting Enterprise Agreement reflects the Household Model.

3. The classifications of the Bupa Enterprise Agreement, however, do not reflect the Household Model. The classifications under the Bupa Enterprise Agreement are narrower in scope and do not allow the same flexibility in the delivery of care to residents.

4. The extensive training programs of the applicant are also centred around the Household Model. The training programs of the applicant would be redundant at the Bupa Sites and the applicant would need to develop additional training programs to ensure that staff at the Bupa Sites were adequately trained.

5. The Bupa Enterprise Agreement also contains significantly lower rates of pay for nursing staff. The applicant deliberately ensures that it offers competitive rates of pay in order to attract and retain nursing staff. The lower rates of pay pursuant to the Bupa Enterprise Agreement will impair the ability of the applicant to attract and retain nursing staff, particularly in light of the increases in nursing staff recommended by the Royal Commission into Aged Care.

6. There is, therefore, a lack of business synergy between the Bupa Enterprise Agreement and the Uniting Enterprise Agreement.” 7

s.318(3)(g) - the public interest

[14] The Applicant submitted that:

1. “In allowing the Bupa Enterprise Agreement to continue to apply to the Transferring Employees, would unnecessarily complicate the employment arrangements of the applicant and prevent the introduction of the Household Model.

2. Further, it would impede the ability of the applicant to achieve the necessary accreditations for the Bupa Sites, which would have the potential to cause a significant impact for the members of the local communities using or seeking to use the applicant’s services.

3. The Commission must consider a number of elements under the public interest criteria including the interests and welfare of the community: see Mining Machinery (Moss Vale site) Certified Agreement 1998/1999 (Print T1133). Bearing in mind the negative impact on the community and the employees if the relief is not granted, the applicant says that it is in the public interest to enter the orders in the Application.” 8

Conclusion

[15] Having considered the application and the materials filed in support of the application, the Commission is satisfied that all the requirements of s.318 of the Act have been met. An Order will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE501266  PR734021>

 1   Form F40 dated 19 August 2021, p. 5.

 2   Applicant’s Outline of Argument dated 7 September 2021, p. 8.

 3   Form F40 dated 19 August 2021, p. 6.

 4   Applicant’s Outline of Argument dated 7 September 2021, p. 9-10.

 5   Form F40 dated 19 August 2021, p. 7.

 6   Ibid.

 7   Ibid.

 8   Ibid.