AG2012/10894, Transcript of Proceedings [2012] FWATrans 1051 (3 October 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1034722-1

DEPUTY PRESIDENT HAMILTON

AG2012/10894

s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Application by Medibank Private Limited
(AG2012/10894)
Medibank Health Solutions Division Enterprise Agreement 2010-2012

(ODN AG2010/24443)
[AE884900 Print PR508044]]




Melbourne

10.19AM, TUESDAY, 25 SEPTEMBER 2012

PN1

THE DEPUTY PRESIDENT: I’ll take appearances please.

PN2

MS V. NEILL: Virginia Neill.

PN3

THE DEPUTY PRESIDENT: Please stand up.

PN4

MS NEILL: Excuse me. Virginia Neill, manager of workplace relations, Medibank Private.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MS K. CASSAR: Katie Cassar, workplace relations advisor for Medibank Private.

PN7

THE DEPUTY PRESIDENT: Thanks. All right, over to you.

PN8

MS NEILL: Okay thank you Deputy President. The application that we’ve sent forward today in regards to section 318 of the Fair Work Act, is to apply for an order that the instrument being the Medibank Health Solutions Enterprise Agreement 2010 not transfer with three of our Medibank Health Solutions employees, whose positions have been part of a restructure within the organisation and transferred to another employing entity of Medibank Private.

PN9

Medibank Private is the owner of Medibank Health Solutions and has been for approximately three years now. Medibank has restructured its corporate functions and these three positions fall within the corporate functions of Medibank Private. As part of this restructure, the organisation is transferring those three positions to the Medibank Private employing entity and as I mentioned with that are applying for orders that the Medibank Health Solutions Enterprise Agreement 2010 not transfer. The employees that are affected in this restructure have all been consulted. It was explained to them that we would be applying for against the transfer of this – how the transfer of business rules would apply, the intended process of the transfer, details of the structure of others that transfer that were likely to be made and we also compare the relative terms of the conditions of the Medibank Award which is the Enterprise Award that applies to Medibank Private employees with the Medibank Health Solutions Enterprise Agreement.

PN10

The three employees effected were advised that the terms and conditions that would apply to them under the Medibank Enterprise Award are actually – would be the terms applying, however in addition to that would be providing each of the employees with a common law contract which the terms of that common law contract greater than the current terms that they receive under the Medibank Health Solutions Enterprise Agreement.

PN11

THE DEPUTY PRESIDENT: Right, section 318 governs this application does it not?

PN12

MS NEILL: Yes correct. Sorry yes.

PN13

THE DEPUTY PRESIDENT: Convention is you stand when you put submissions to the tribunal.

PN14

MS NEILL: Sorry.

PN15

THE DEPUTY PRESIDENT: Sections 318 governs the application does it not?

PN16

MS NEILL: Correct.

PN17

THE DEPUTY PRESIDENT: Now, first of all, section 318 subsection (2), the application is made by who?

PN18

MS NEILL: The application is made by Medibank Private.

PN19

THE DEPUTY PRESIDENT: Is that the new employer within section 2A?

PN20

MS NEILL: Yes it is.

PN21

THE DEPUTY PRESIDENT: Matters that Fair Work Australia must take into account; 3A, the views of the employees. You’ve indicated they have given consent?

PN22

MS NEILL: Yes that’s right, Deputy President, they have.

PN23

THE DEPUTY PRESIDENT: And those documents are attached are they?

PN24

MS NEILL: They are. They’re attached to our application.

PN25

THE DEPUTY PRESIDENT: Yes I have it.

PN26

MS NEILL: So attachment A.

PN27

THE DEPUTY PRESIDNENT: (B), Disadvantage in relation to terms and conditions of employment. You’ve just dealt with that issue.

PN28

MS NEILL: Correct, the terms and conditions are greater that they’re being offered as part of this transfer.

PN29

THE DEPUTY PRESIDENT: The normal expiry date of the agreement?

PN30

MS NEILL: It’s 30 June 2012.

PN31

THE DEPUTY PRESIDENT: Thank you. Whether the transferable instrument will have a negative impact on the productivity of the new employer’s workplace?

PN32

MS NEILL: Our view is that it would, albeit limited because the employees would be on different terms and conditions to their colleagues who are performing very similar, if not the same work and this could impact at times on the employee’s productivity because of how they feel they’re valued within the organisation.

PN33

THE DEPUTY PRESIDENT: Thank you. Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer?

PN34

MS NEILL: No Deputy President, it wouldn’t be significant economic advantage, no.

PN35

THE DEPUTY PRESIDENT: Degree of business synergy between the transferable instrument and any work place instrument that already covers the new employer? You may have dealt with that issue.

PN36

MS NEILL: Yes so there would be a degree of synergies but a number of areas where it’s not the same and as I mentioned the employees would see that they are actually being disadvantaged if they were to retain the Medibank Health Solutions Enterprise Agreement, especially on the basis that that agreement doesn’t have any salary increases going forward.

PN37

THE DEPUTY PRESIDENT: (G),The public interest?

PN38

MS NEILL: We see that the public interest test here is met or that we wouldn’t be against the public interest because the employees would be offered greater terms and conditions of employment than what they’re currently enjoying.

PN39

THE DEPUTY PRESIDENT: The other employees of the new employer are covered by what?

PN40

MS NEILL: The other employees are covered by common law contracts or some may be covered by expired AWA’s.

PN41

THE DEPUTY PRESIDENT: You mean they’re covered by the Award?

PN42

MS NEILL: Sorry they are covered – yes by the Medibank Private Enterprise Award.

PN43

THE DEPUTY PRESIDENT: And in addition to the Award you provide common law contract?

PN44

MS NIELL: Correct, yes.

PN45

THE DEPUTY PRESIDENT: Is there anything else?

PN46

MS NEILL: No, Deputy President.

PN47

THE DEPUTY PRESIDENT: Thanks very much. On the basis of the – sorry is there anybody else want to speak.

PN48

MS CASSAR: No thank you.

PN49

THE DEPUTY PRESIDENT: Thanks. On the basis of the documents filed and the submissions put today, I’m satisfied that I should grant the order as sought and I will do so. I am satisfied firstly, pursuant to section 318 of the Fair Work Act 2009 that I can make an order as sought. Secondly, I am satisfied, pursuant to section 318 (2A) that the applicant is a person referred to in that subsection. Thirdly I have been addressed on the issues set out in section 318 subsection (3A-G). I accept the submissions put by the applicants. I will make the order as sought. I reserve the right to provide further reasons for decision. An order will be issued as soon as possible. So thank you very much for coming. This matter stands adjourned.

<ADJOURNED INDEFINITELY [10.26AM]