UnitingCare Qld Limited
[2024] FWC 1524
•13 JUNE 2024
| [2024] FWC 1524 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Applications for orders relating to instruments covering new employer and non-transferring employees
UnitingCare Qld Limited
(AG2024/1731, AG2024/1732, AG2024/1733, AG2024/1734, AG2024/1735, AG2024/1736, AG2024/1737, AG2024/1738, AG2024/1739, AG2024/1740, AG2024/1741, AG2024/1742 & AG2024/1743)
| COMMISSIONER SIMPSON | BRISBANE, 13 JUNE 2024 |
Applications for orders relating to instruments covering new employer and non-transferring employees
UnitingCare Qld Limited (the Applicant/UnitingCare) has lodged applications under s.319 of the Fair Work Act 2009 (the FW Act) seeking orders from the Fair Work Commission (the Commission).
The relevant matter numbers and related agreements are:
- AG2024/1731 - UnitingCare Community Enterprise Agreement 2012 – 2014;
- AG2024/1732 - UnitingCare Community Retail Enterprise Agreement 2015;
- AG2024/1733 - UnitingCare Community Transport and Distribution Enterprise Agreement 2015;
- AG2024/1734 - BlueCare Care and Support Employees Enterprise Agreement 2023;
- AG2024/1735 - BlueCare Nursing Employees Enterprise Agreement 2024;
- AG2024/1736 - BlueCare Allied Health Employees’ Enterprise Agreement 2023;
- AG2024/1737 - Blue Care/Wesley Mission Brisbane Administration Employees Enterprise Agreement 2013;
- AG2024/1738 - UnitingCare Health Allied Health Employees Enterprise Agreement 2023-2026;
- AG2024/1739 - Blue Care/Wesley Mission Brisbane Allied Health and Community Service Stream Employees Enterprise Agreement 2013;
- AG2024/1740 - UnitingCare Health Engineering / Maintenance Enterprise Agreement 2016- 2018;
- AG2024/1741 - UnitingCare Health & QNMU – Nurses and Midwives Enterprise Agreement 2022 – 2025;
- AG2024/1742 - UnitingCare Health Support Services Enterprise Agreement 2016 – 2018; and
- AG2024/1743 - UnitingCare Health Clerical/Administration Enterprise Agreement 2016 – 2018.
(Collectively, the Applications)
The Applicant submitted that there will be a transfer of business (within the meaning of the FW Act) between The Uniting Church in Australia Property Trust (Q.) and UnitingCare on 1 July 2024. Accordingly, the Applicant seeks orders that UnitingCare’s 13 enterprise agreements also apply to any non-transferring employees employed by the Applicant. The Applicant also included information that the materials were served on the employees currently covered by the relevant enterprise agreements.
On 24 May 2024, I sent an email to the Applicant and the named unions notifying them that I intended to list the Applications concurrently for a Directions Hearing on 31 May 2024. At the Directions Hearing, the following unions appeared:
· Australian Nursing and Midwifery Federation (ANMF);
· The Australian Workers’ Union (AWU);
· Together ASU;
· Shop, Distributive and Allied Employees Association (SDA); and
· Transport Workers’ Union of Australia (TWU).
Prior to the Directions Hearing the United Workers’ Union (UWU) and Electrical Trades Union (ETU) indicated they wished to be excused from the Directions Hearing as they did not object to the applications and did not wish to be heard. This request was granted.
After the Directions Hearing I issued directions for filing of further material and the matter was listed for hearing on 19 June 2024.
On 7 June 2024 the ANMF, the Services Union and TWU noted that they did not have any objections to the Applications on the basis that the Applicant had made the requested amendments to the proposed orders. The SDA notified the Commission that they overall supported the proposed amendments but were still working through one outstanding issue.
On 11 June 2024, the Applicant emailed the Commission as follows:
“Dear Associate
AG2024/1731 & Ors | Proposed amendments to orders
I refer to the directions hearing before Commissioner Simpson on 31 May 2024.
Proposed amendments to orders
At the directions hearing, representatives from the following unions raised concerns about the operation of order 2 and the drafting of order 3 of each s 319 application filed by the Applicant:· The Australian Workers’ Union;
· The Services Union;
· Together Queensland;
· Transport Workers’ Union;
· Queensland Nurses & Midwives’ Union/Australian Nursing & Midwifery Foundation; and
· Shop, Distributive and Allied Employees’ Association, Queensland Branch.
For each of its s 319 applications, the Applicant has proposed to amend the orders sought to delete order 2 and amend order 3 to state as follows:
Subject to section 319(4) of the Act, the order shall come into operation on and from the date on which the order is made.
The orders now sought by the Applicant in each application are in the terms set out in the attached draft orders.
Each union listed above has advised the Applicant that, subject to the proposed amendments to the orders, they do not object to the applications.
AG2024/1732 | Concerns raised by the SDA
In its email to the Commission dated 7 June 2024, the SDA raised a concern in relation to the s 319 application for the UnitingCare Community Retail Enterprise Agreement 2015 (Retail Agreement). Specifically, the SDA raised a concern that rates of pay for casual employees working Saturdays under the Retail Agreement are 135%, compared to 150% in the underlying General Retail Industry Award (Award).The Applicant and the SDA have resolved this concern on the basis that the Applicant has committed to paying casual employees covered by the Retail Agreement a Saturday penalty rate of 150% in line with the Award. On this basis, the SDA has advised the Applicant that it does not object to this application.
...”
This same day I emailed all parties noting that any further objections were to be raised by 12:00PM 12 June 2024 otherwise I intended on granting the orders sought and vacating the hearing. The Commission did not receive any further objections.
Statement of Lisa McGill
Included with the Applications was a Statement of Lisa McGill, General Manager, People and Culture Service Delivery.
Incorporation of UnitingCare
Ms McGill stated that on 8 May 2024, UnitingCare emailed its workforce to notify that a decision had been made to incorporate the UnitingCare business and that the employment of all employees would be transferred to the Applicant on 1 July 2024.
Ms McGill’s evidence was that from 1 July 2024, UnitingCare’s operations will all be run through the Applicant entity wherever possible. The Applicant will own or have the beneficial use of all of the assets owned by the Trust.
Ms McGill stated that she was informed by Suzanne Marlow (Group Executive, Governance of UnitingCare) that the Applicant and the Trust are associated entities within the meaning of the Corporations Act 2001 (Cth).
Transfer of employees to the Applicant
Ms McGill stated that all of the employees currently employed by the Trust (the Transferring Employees) will become directly employed by the Applicant on 1 July 2024. The employment of the Transferring Employees with the Trust will terminate on 30 June 2024.
Ms McGill stated that UnitingCare would send a letter to the Transferring Employees notifying them of the change to their employing entity and that they will be deemed to have accepted this change if they continue to attend work (or take approved leave) on or from 1 July 2024.
Transferable instruments
The Transferring Agreements will:
a.continue to cover and apply to the Transferring Employees following their transfer to the Applicant; and
b.cover and apply to the Applicant in respect of the Transferring Employees.
If the orders sought in the Applications are not granted, any new employees employed by the Applicant (Non-Transferring Employees) will be covered by the relevant modern awards (as applicable) (the Awards).
The s 319 Applications
Ms McGill stated the Applicant has made the Applications seeking orders that the Transferring Agreements also apply to Non-Transferring Employees.
Ms McGill’s evidence was that as at the date of the statement (being 21 May 2024), the Applicant has not employed any new Non-Transferring Employees. Accordingly, the Applicant has not been able to obtain the views of any Non-Transferring Employees in relation to the Applications.
Ms McGill stated on 8 May 2024, UnitingCare notified the Transferring Employees via email that it would be making an application to the Fair Work Commission so that UnitingCare’s enterprise agreements would apply to new employees of the Applicant. The email contained a link to draft copies of the Applicant’s Applications and provided the Employees with a further link to provide any feedback or ask any questions.
As at the date of the statement, Ms McGill was not aware that UnitingCare had received any feedback from Transferring Employees in relation to the Applications.
Ms McGill’s evidence was that on 8 May 2024, UnitingCare emailed the unions which are parties to the Transferring Agreements with a copy of the correspondence provided to Transferring Employees on the same date and invited them to attend a union briefing meeting on 9 May 2024.
Ms McGill stated on 9 May 2024, UnitingCare held a briefing meeting with the unions which are parties to the Transferring Agreements to discuss the transfer of employees to the Applicant and the proposed Applications. A copy of the PowerPoint presentation shown during the briefing meeting was attached to Ms McGill’s statement. Ms McGill stated that the unions were advised that UnitingCare would be filing the Applications on 21 May 2024 and were invited to provide any feedback.
On 13 and 14 May 2024, UnitingCare sent a copy of the Applications to the unions which are parties to the Transferring Agreements and requested the unions to provide their views on the Applications.
Views of the Applicant
Ms McGill stated the Applicant seeks that the Transferring Employees and any new Non-Transferring Employees performing the same roles in the same locations be covered by the same guaranteed terms and conditions of employment. The Transferring Agreements have been negotiated by UnitingCare and its workforce and are more tailored to suit the needs of the workplace than the Awards.
If the orders sought in the Applications are not made, any Non-Transferring Employees employed by the Applicant performing the work covered by the classifications in the Transferring Agreements will be covered by one of the 7 Awards as applicable.
Ms McGill stated this would mean the Applicant would be required to build a system of new work rules and pay codes to ensure non-Transferring Employees are paid correctly and accrue leave in accordance with the requirements of the 7 Awards (in addition to the systems already built to administer the 13 Transferring Agreements). This would require updating three different software systems used by UnitingCare.
Ms McGill stated to ensure compliance with the 7 Awards, the Applicant would be required to develop work rules based on the interpretation of the Awards and then separately create and upload codes for all applicable conditions (including the different rates of pay, all the allowances, deductions, overtime, shift penalties, on call, recall etc) followed by testing of all the codes to ensure they work as intended and employees will be paid correctly. Ms McGill stated there would be hundreds of codes required under the 7 Awards and this will be a costly and time-consuming exercise for the Applicant. It is a particularly complicated exercise as the systems will need to be designed to differentiate employees performing the same roles but who are covered by either a Transferring Agreement or the Award.
Ms McGill stated the Applicant does not currently have the resources to perform this work inhouse and would likely need to outsource this work which would be costly.
Ms McGill’s evidence was that the Applicant would be required to conduct extensive training for its Managers, Human Resources Team and Payroll Teams on managing and implementing different sets of terms and conditions for employees performing the same work.
Ms McGill stated for example, managers are required to have knowledge of the particular work codes (such as overtime and recall work codes) and would need to understand if an employee is Award covered or covered by a Transferring Agreement (despite performing the same role in the same location) in order to apply the correct code in these circumstances. Ms McGill stated this is difficult to administer in practice and significantly increases the risk that incorrect work codes are applied and employees are not paid correctly.
Additionally, it was stated that the Applicant would be required to undertake the costly and time- intensive exercise of building systems for Award compliance in circumstances where those systems may only be required for a very short period of time, as most of the Transferring Agreements will be replaced in the near future and will cover Non- Transferring Employees to the exclusion of the Awards (and therefore those Award work codes and systems would no longer be required). The Applicant is currently in negotiations for enterprise agreements to replace the following agreements:
a.BlueCare / Wesley Administration Employees Enterprise Agreement 2013;
b.UnitingCare Health Support Services Enterprise Agreement 2016 – 2018;
c.UnitingCare Health Clerical/Administration Enterprise Agreement 2016 – 2018; and
d.UnitingCare Health Engineering / Maintenance Enterprise Agreement 2016- 2018.
Ms McGill stated if Non-Transferring Employees are not covered by the Transferring Agreements, the Applicant would also be faced with complex rostering arrangements due to employees working in the same roles as Transferring Employees having different rostering requirements under the Awards (including different change of roster requirements).
Ms McGill stated if the orders sought by the Applicant are not made, the Applicant has concerns about the industrial disharmony created by having different sets of terms and conditions for employees performing the same roles in different locations. For example, the Transferring Agreements and Awards all have different requirements for progression to new classifications or pay levels (which may require, for example, the completion of a certain number of hours of work) and so employees performing the same role will progress differently to the next pay levels or classifications depending on whether they are covered by an award or enterprise agreement.
Ms McGill’s evidence was that if the orders sought in the Applications are not granted and Transferring Employees and any new Non-Transferring Employees performing the same roles are covered by different industrial instruments, it significantly increases the risk of non-compliance with those instruments due to the differences between the Awards and the Transferring Agreements (including differing pay rates, differing leave accruals, differing triggers for overtime and penalties, varying allowances etc).
UnitingCare currently employs over 17,000 employees and so already has complex payroll systems in place. If the orders sought in the Applications were granted, it would mitigate against the risks for the business in having:
a.Complex rostering systems due to employees working in the same roles having different rostering requirements (including different change in roster requirements);
b.Complex time and attendance systems and payroll systems which would be required to administer different terms and conditions for employees performing the same work (including differing pay rates, differing leave accruals, differing triggers for overtime and penalties, varying allowances etc).
Consideration
I have taken into account the material provided by the Applicant in support of its Applications and the matters set out in s.319(3) of the Act as well as the views of the unions. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.319(3) of the Act, support the making of the orders.
Orders to this effect for each of the Applications are issued in conjunction with this decision.
COMMISSIONER
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