ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned St John of God Pathology Victoria – Health Services Union – Caregiver Enterprise Agreement 2015 (Agreement) – applicant sought that the Commission make three determinations in the matter – Commission considered jurisdiction to make draft determinations sought – draft determination one sought a finding that respondent failed to consult – draft determination two sought a finding that there was an obligation on the respondent to undertake consultation within a specified period or that in any event, the respondent did not undertake consultation within the period sought by the applicant – the complaints in draft determinations one and two could not be made out – draft determination three invites a finding that employees were entitled to severance payments pursuant to clause 33(g) of the Agreement – 33(j) of the Agreement states that severance payments are not ‘payable in the event of a transmission of business where comparable alternative employment is offered and accepted’ – this required resolution of whether there was a transmission of business, whether the respondent ‘obtained’ the new employment, and whether that employment was ‘comparable alternative employment’ – Commission held nothing in Agreement suggested ‘transfer of business’ had a meaning other than the ordinary meaning – meaning in Schedule B attributed – comparable employment was offered and accepted – whether employment is ‘acceptable alternative employment’ is an objective test – identical employment need not be found and comparability does not rest on there being no detriment to an employee – there were some differences in the new employment offered – these matters do not displace the proposition that the alternative employment is comparable – while not identical, the new employment had features of broad and sufficient comparison with the former employment having regard to the nature of work to be performed, the payment received, the skills used and the hours worked – application dismissed. Health Services Union v St John of God Health Care
