Women's Safety Services (South Australia) Limited T/A Women's Safety Services SA

[2023] FWC 1044

[2023] FWC 1044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Women's Safety Services (South Australia) Limited T/A Women's Safety Services SA

(AG2023/873)

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 5 MAY 2023

Application for an order relating to instruments covering new employer and non-transferring employees.

1. On 29 March 2023, Women's Safety Services (South Australia) Limited T/A Women's Safety Services SA (the Applicant or the New Legal Entity) filed an application in the Fair Work Commission (the Commission) in respect of the operation of the Women's Safety Services SA & Australian Services Union (SA+NT) Enterprise Agreement SA 2021[1] (the Agreement) to non-transferring employees.

1. The Agreement was approved on 24 January 2022 and has a nominal expiry date of 23 January 2025.

1. This Application seeks pursuant to s.319(1)(b) of the Fair Work Act 2009 (the Act) that the Agreement will cover the new employer, Women’s Safety Services (South Australia) Ltd and will also cover all non-transferring employees of Women’s Safety Services SA Incorporated who perform work covered by the Agreement.

The relevant legislation

1. Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

1. Section 311(1) of the Act defines “transfer of business”, and section 312 defines the types of “transferable instrument” that may transfer from one employer to another.

1. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.

Background

1. Women’s Safety Services SA (WSSSA) is an organisation that supports women and their children who are experiencing domestic and family violence. It employs 122 employees in the social and community services sector.

1. Prior to 9 February 2023, WSSSA operated as an association pursuant to Section 42(1) of the Associations Incorporation Act 1985. The legal entity employing the employees was Women’s Safety Services SA Incorporated. The Women’s Safety Services SA Incorporated and eligible employees were covered by the Agreement.

1. In May 2020 it was determined that the undertaking and/or operations of WSSSA would be more appropriately carried on by a company limited by guarantee under the Corporations Act 2001.

1. On 6 February 2023, an order was issued by the Corporate Affairs Commission that effective 9 February 2023, the Association Women’s Safety Services SA Incorporated was dissolved. All property of the Association became the property of Women’s Safety Services (South Australia) Limited (the New Legal Entity).

1. On 9 February 2023, all employees of WSSSA were employed by the New Legal Entity. The work performed by the employees remained unchanged and continuity of service was maintained.

Consideration

1. I accept that the Agreement is a transferable instrument for the purposes of s.312(1)(a) of the Act.

1. I am satisfied that there has been a transfer of business between Women’s Safety Services SA Incorporated and the Applicant for the purposes of s.311(1) of the Act.

1. On 6 April 2023, I conducted a conference, by telephone, in respect of the application. Ms Natalie Sawyer (People and Culture Advisor) appeared as the Applicant at the conference with Ms Maria Hagias (CEO). Mr Scott Cowen represented the Australian Services Union (SA & NT) [ASU]. The ASU are entitled to represent employees covered by the Agreement.

1. Following the conference, Directions were issued seeking the Applicant to provide a copy of its submissions to any Union and/or employee impacted by the Application and asked any party who opposed the application to advise my Chambers.

1. No correspondence was received opposing the Application.

1. On 20 April 2023, Mr Scott Cowen from the ASU advised that the Union had received a copy of the Applicant’s submissions, contending that the Agreement provides numerous terms and conditions of employment that are superior to the Social, Community, Home Care and Disability Services Industry Award 2010 and National Employment Standards that would apply to the exclusion of the Agreement to non-transferred employees if such an Order was not made by the Commission, and supported the Application. 

1. I have considered the view of the affected employees and the Union.

1. There is an obvious business synergy between the former WSSSA and the Applicant.

1. I accept that in the absence of the order sought, the Applicant will have to administer different industrial instruments to persons performing the same work in the workplace and this will lead to inefficiencies.

1. I accept that the terms of the Agreement considered globally are superior to the Award and that no employee will be disadvantaged.

1. I have considered the expiry date of the Agreement and the Public Interest.

1. Having considered each of the matters outlined in s.319(3) of the Act and the material that has been filed, I am satisfied that orders pursuant to s.319(1)(b) of the Act should be made in respect of both applications. The order[2] will be issued concurrently with this decision.

COMMISSIONER

[1] [AE514698]

[2] PR761580

Printed by authority of the Commonwealth Government Printer

<AE514698  PR761576>