WISE Employment Ltd
[2023] FWC 1302
•14 JUNE 2023
| [2023] FWC 1302 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
WISE Employment Ltd
(AG2023/1604)
| Health and welfare services | |
| COMMISSIONER BISSETT | MELBOURNE, 14 JUNE 2023 |
Application for an order relating to instruments covering new employer and transferring employees
The Commission has received an application made by WISE Employment Ltd (Applicant) in which it seeks orders pursuant to s.318(1)(a) of the Fair Work Act 2009 (FW Act) that three specified transferable instruments not cover WISE Employment Ltd and transferring employees with respect to their employment with the Applicant.
The three transferable instruments for which orders are sought are:
1. Access Australia Group Ltd Enterprise Agreement 2016;
2. Bendigo Access Employment Inc. Collective Certified Agreement 2005; and
3. Bendigo Access Employment Access Contractors Certified Agreement 2005
(transferable instruments)
In correspondence to the Commission on 8 June 2023 the Applicant indicated that the Bendigo Access Employment Inc. Collective Certified Agreement 2005 does not cover any transferring employees and it therefore no longer presses this aspect of its application.
Background
The Applicant plans to merge with Access Australia Group (AAG) in or around 1 July 2023. The merger will occur by way of the Applicant acquiring the business, assets, and employees of AAG.
The Applicant has entered into a Business and Asset Sale Agreement with AAG which provides for the Applicant to offer employment to employees of AAG.
The Applicant therefore seeks orders that the transferable instruments not cover the Applicant or the transferring employees. The effect of the grant of the order will be that employees of AAG will revert to coverage under the relevant Awards which currently apply to the Applicant and its employees.
As part of its application the Applicant has provided the Commission with a statutory declaration of Mr Mark Falla, Head of HR Operations for WISE Employment Ltd dated 8 June 2023. The statutory declaration included:
· Details of the consultation process carried out with employees of AAG including:
o Consultation Notification Letters to Staff including advice of the application to the Commission;
o FAQ Documents;
o Template Letters of Offer;
o Transferring EAs and Award Summary Comparison Tables; and
o Employee Feedback Forms.
· The sheet seeking the views of AG employees in relation to the application before the Commission.
Legislative provisions
Section 318 of the FW Act states 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 considered each of the matters in s.318(3)(a)-(g) based on the information provided by the Applicant. In doing so I note that there are no unions covered by the transferable instruments.
Consideration
I am satisfied that the Applicant has standing to make the application as the new employer or likely new employer (s.318(2)(a)).
I am satisfied that the Applicant, as the likely new employer, wishes to harmonise the terms and conditions of employment of transferring and non-transferring employees such that employees doing similar work have comparable wages and conditions of employment. The Applicant also wishes to reduce administrative complexity and payroll costs.
There are 172 employees of AAG who will be offered employment by the Applicant.
Transferring employees have been consulted with respect to the transfer and have each been offered employment with the Applicant. The consultation process with affected employees has been extensive and has involved the provision of detailed information as set in paragraph [7] above along with consultation meetings.
Consultation meetings were held separately with employees currently covered by the Access Australia Group Ltd Enterprise Agreement 2016 who, (should they accept the offer of employment and if the orders sought are granted) will be covered, as is relevant, by the Social, Community, Home Care and Disability Services Award 2010, the Restaurant Industry Award 2020, the Educational Services (Post-Secondary Education) Award 2020 and the Labour Market Industry Award 2020. The consultation meetings resulted in some clarifications being provided to employees in relation to comparison tables provided, information in relation to terms and conditions including salary packaging, branding, uniforms, payroll, transitional arrangements for leave, equipment and computer systems and payroll integration and the on-going applicability of some policies.
A consultation meeting was also held with employees covered by the Bendigo Access Employment Access Contractors Certified Agreement 2005 whose employment will be covered by the Supported Employment Services Award 2020 should the order be granted in relation to this agreement. Some of the employees who attended this meeting were accompanied by support persons. Employees attending this consultation meeting asked questions on a range of matters including wages, applying for leave, opportunities for increased hours and training opportunities.
The consultation process with employees also advised that the Applicant would apply to the Commission for orders that the transferable instruments not apply to transferring employees. Employees were given the opportunity, via an individual feedback form, to indicate their views as to the applications currently before the Commission. Of those who completed this feedback form I am advised, through the statutory declaration of Mr Falla, that 50 employees indicated their support for the application, 3 transferring employees expressed that they do not support the applications and 10 transferring employees returned incomplete feedback forms such that their views could not be determined.
I have reviewed the terms of the transferable instruments compared to the relevant Awards (as detailed by the Applicant in the attachments to the statutory declaration of Mr Falla). I have also taken into account that the Applicant has contractually agreed to maintain the following entitlements of transferring employees covered by the Access Australia Group Ltd Enterprise Agreement 2016 and the Bendigo Access Employment Inc. Collective Certified Agreement 2005:
· 5 days’ paid family/personal leave per annum (non-cumulative);
· 12 days’ sick/carers’ leave per annum (calculated on a pro-rata basis);
· paid parental leave (8 weeks’ pay for primary carers and 2 weeks’ pay for employees who are in a partnership with the primary carer). The Applicant has committed to applying this entitlement to transferring employees under both transferring EAs, noting that this entitlement is more generous than the parental leave entitlements applicable to transferring employees covered by the Bendigo Access Employment Inc. Collective Certified Agreement 2005.
I note that the discretionary entitlement to an additional paid leave of up to 3 days over the annual Christmas closure period will need to be maintained.
I also note that the Applicant has contractually agreed to maintain the entitlement to 12 days’ paid sick leave (pro-rata) per annum for transferring employees currently covered by the Bendigo Access Employment Access Contractors Certified Agreement 2005.
I am satisfied that employees of AAG have been appraised of all matters relevant to the offers of employment and the effect of the applications currently before the Commission. I am further satisfied that, of those who provided feedback, the majority support the application currently before the Commission. I am also satisfied that transferring employees will not be disadvantaged by the order (s.318(3)(b)).
I note that the nominal expiry dates of the Agreements are:
1. Access Australia Group Ltd Enterprise Agreement 2016 – 20 March 2020
2. Bendigo Access Employment Access Contractors Certified Agreement 2005 – 29 September 2008
Both have therefore passed their nominal expiry dates. Neither of the transferable instruments has been replaced (s.318(3)(c)).
The Applicant submits, and I accept, that the maintenance of the transferable instruments will likely have a negative impact on the Applicant’s workplace productivity. It will result in the application of three agreement to various transferring employees while non-transferring employees will remain covered by the relevant Awards. This will be administratively burdensome of the Applicant and complex (s.318(3)(d)).
There are economic impacts on the Applicant of having to maintain differing employment conditions for employees performing similar work although I note the Applicant does not consider such costs to be materially significant (s.318(3)(e)).
I accept that there is little business synergy between the transferable instruments and the Awards that apply to the Applicant because of the differing terms and conditions of employment. The grant of the orders sought will result in greater business synergy as a single set of industrial instruments will apply (s.318(3)(f)).
I am satisfied it is in the public interest to grant the order sought. I accept that two of the transferable instruments are ‘zombie’ agreements and it is not in the public interest that these continue to apply to transferring employees. I am also satisfied that it is in the public interest to have harmonised conditions of employment applying to employees doing the same or similar work in circumstances where there is no detriment to transferring employees.
Conclusion
Taking into account my considerations in relation to s.318(3) of the FW Act I am satisfied that it is appropriate to issue the orders sought.[1]
The orders will come into effect at the time the transferring employees are employed by WISE Employment Ltd.
COMMISSIONER
[1] PR763053 and PR763055
Printed by authority of the Commonwealth Government Printer
<AE423698 PR762724>
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