Able Australia Services Pty Ltd

[2021] FWCA 1560

[2021] FWCA 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Able Australia Services Pty Ltd
(AG2021/246)

ABLE AUSTRALIA (TASMANIA) UNION COLLECTIVE AGREEMENT 2021

Social, community, home care and disability services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 MARCH 2021

Application for approval of the Able Australia (Tasmania) Union Collective Agreement 2021.

[1] Able Australia Services Pty Ltd (company) has made an application for approval of an enterprise agreement known as the Able Australia (Tasmania) Union Collective Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] A statutory declaration was lodged by the authorised officer of the Health Services Union (HSU), which was a bargaining representative for the Agreement. The declaration stated that the HSU supported the application, subject to the company addressing its concern about the Agreement’s provisions regarding overtime payments for ‘disturbances’ during sleepovers, which it considered to be less favourable to employees than the corresponding provisions of the Social, Community Home Care and Disability Services Industry Award (Award). The HSU said that, while the basic payment for sleepovers under the Agreement exceeds the payment in the Award, the Agreement’s provision for overtime payments for disturbances was less generous than the Award, because overtime would only be paid if the time worked exceeded ninety minutes, or if there were more than three disturbances. This issue assumed significance with reference to the ‘better off overall test’ (BOOT), in light of the fact that two classifications of employees receive the same rate of pay under the Agreement as that prescribed by the Award, and others receive a rate of pay only marginally in excess of the Award rate.

[3] At a telephone mention, I raised with the parties my preliminary view that the question of whether the Agreement’s sleepover and overtime arrangements would operate more favourably or less favourably for an employee than the corresponding Award provisions would depend on the circumstances. I noted that under the Agreement an employee must be paid for a minimum of 30 minutes for each disturbance, whereas under the Award an employee receives a minimum payment of one hour’s pay, but not for each disturbance.

[4] It is relevant to note that the Agreement makes only minor changes to the existing enterprise agreement, the Able Australia (Tasmania) Union Collective Agreement 2017 (2017 Agreement), and that the sleepover provisions remain essentially unchanged, save that the sleepover payment rate has been increased. The concern raised by the HSU therefore relates to provisions that are also found in the 2017 Agreement. During the mention, the HSU asked the company whether it had information or data concerning the payments for disturbances that might shed light on how they had operated in practice in the past. The company subsequently advised the Commission and the HSU that it had undertaken a report on the past six months’ work and had identified only seven reported disturbances from over 1284 sleepover shifts at its ten facilities. Of these, only two disturbances were of a duration of less than 90 minutes.

[5] In reply, the HSU said that it believed that the incidence of disturbances was simply being underreported by employees, but that, as it believed neither party wanted the Commission to conduct a hearing, and in the spirit of the Agreement having been intended to be a rollover, the union would not further its BOOT objection. The HSU did however advert to a further issue that had been raised in its F18, namely the absence in the Agreement of a provision reflecting the Award’s requirement of a minimum of four hours’ work either side of a sleepover. However, I note that the Agreement allows an employee to refuse a sleepover on reasonable grounds, and in my view the work arrangements offered either side of a sleepover would be relevant to the reasonableness of an employee’s refusal. In this way, the Agreement contains a countervailing protection for employees.

[6] Based on the information before the Commission, I am satisfied that each award covered employee and prospective award covered employee for the Agreement would be better off overall if the Agreement applied to the employee than if the Award were to apply. In particular, in relation to employees whose rate of pay under the Agreement is the same as the Award rate, I consider that the higher sleepover payment rate, together with the other benefits conferred by the Agreement, including a shorter span of ordinary hours and additional personal leave, render them better off overall under the Agreement than under the Award. I am satisfied that the Agreement passes the BOOT.

[7] It appears from the F17 statutory declaration that employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[8] The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement. Subject to this undertaking, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met

[9] The HSU has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), I note that the Agreement covers the organisation.

[10] The Agreement was approved on 23 March 2021 and, in accordance with s 54, will operate from 30 March 2021. The nominal expiry date of the Agreement is 23 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   [2019] FWCFB 318