Aboriginal Hostels Limited

[2017] FWCA 3855

[2017] FWCA 3855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aboriginal Hostels Limited
(AG2017/492)

ABORIGINAL HOSTELS LIMITED ENTERPRISE AGREEMENT 2017

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 21 JULY 2017

Application for approval of the Aboriginal Hostels Limited Enterprise Agreement 2017 – whether agreement passes the better off overall test – agreement approved.

[1] An application was received by the Fair Work Commission (the Commission) on 20 February 2017 for approval of an enterprise agreement known as the Aboriginal Hostels Limited Enterprise Agreement 2017 (the Agreement). The application was made by Aboriginal Hostels Limited (AHL - the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Background

[2] United Voice (UV) was a bargaining representative for the Agreement. In its Form F18 – Statutory declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) UV declared that it did not support approval of the Agreement and that it disagreed with one or more of the answers provided in AHL’s Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement). Specifically, UV in its Form F18 raised a number of concerns, including whether employees who would be covered by the Agreement had access to the proposed agreement for the full seven days prior to the vote on the Agreement commencing. UV also expressed the view that employees had insufficient time to receive and return their ballot paper in respect of the proposed agreement and highlighted a number of terms in the Agreement which it considered less beneficial than the relevant award, the Australian Public Service Enterprise Award 2015 1 (the Award), or which were included in the Award but not reflected in the Agreement.

[3] Similar concerns were raised by the Community and Public Sector Union (CPSU), another bargaining representative for the Agreement, in its Form F18. However, the CPSU supported the approval of the Agreement.

[4] Against that background, the Commission convened a conference on 10 April 2017. The conference concluded with UV maintaining its opposition to approval of the Agreement. On 11 April 2017 UV wrote to the Commission advising that it wished to be heard in respect of its objections to the approval of the Agreement and requested that the matter be set down for hearing. Directions were subsequently issued on 13 April 2017 with the matter listed for hearing on 6 and 7 June 2017.

[5] On 28 April 2017 UV advised the Commission that the parties had agreed to hold another ballot regarding the Agreement and that as a result its objection was withdrawn. The conduct of a second ballot was confirmed in an email from AHL on 3 May 2017, with the email advising that the outcome of the ballot should be known by 5 June 2017. In the light of the above advice the 6 and 7 June 2017 hearing dates were vacated.

[6] In subsequent developments:

• on 7 June 2017 AHL forwarded to the Commission a statutory declaration made by Mr David Wedgwood, AHL’s Industrial Relations Advisor, advising inter alia that 153 valid votes had been cast in the second ballot with 109 of those votes supporting approval of the Agreement;



• on 13 June 2017 AHL filed an amended Form F17; and



• the CPSU and UV filed amended Form F18’s on 13 and 21 June 2017 respectively, with both unions now supporting approval of the Agreement but continuing to highlight in similar terms in their respective Form F18’s several terms in the Agreement which they considered to be less beneficial than the Award.

[7] The issues which UV and the CPSU highlight in their Form F18’s are as follows:

“a. There is no guaranteed right to part-time hours on return from maternity leave

(6.4(h) Award).

b. Hours of work are greater than 36.75 hours/week (5.8 EA; 8.2(b) Award)

c. Longer span of hours compared to award 8am – 6pm (5.10 EA; 8.2(c)(i) Award)

d. The EA caps Flex credit and debit accrual (5.45 EA). There is no under the award (8.2(g) Award)

e. Higher duties not payable until after one day (6.29 EA). Higher duties is paid after ½ day under the award (10.8(a)(ii) Award

f. No removal expenses (11.5 Award)

g. No disturbance allowance (11.6 Award)

h. Less comprehensive travel allowance (“reasonable expenses only”) and no rate set under the agreement (4.3-4 EA, 11.8 Award)

i. No right to refuse unreasonable additional hours (15.1 Award). Definition of unreasonable is different to the NES.

j. Restriction allowance is lesser than the award rate (depending on salary). EA rate is flat rate (4.10 EA). Award rate is 7.5% hourly rate/hour on call M-F, 10% Sunday and 15% holidays (15.10 Award).

k. Emergency duty: no minimum hours specified in EA. Award provides double time and minimum 2.5 hours (15.9 Award)

l. No entitlement to time off during redundancy notice period to attend interviews (EA 8.17-8.23; 24.14-5 Award)

m. Employee representatives are not entitled to training directed towards dispute resolution (26.8 Award)

n. Reduced casual loading for APS 2 and above (5.42 EA; 6.5(c) Award).

o. Reduced penalty rates for shiftworkers including casual staff. Reduced penalty rates for working on a Sunday (5.39 and 5.14 EA; Award 14.2)

p. Hostel manager $1500/year allowance for overtime is not comparable to overtime payments under Award (4.20 EA; Award 15.4)

q. No remote localities leave fares (Award 12.5)

r. Community language allowance below Award (4.11 EA; Award 11.15 and B1)

s. First Aid allowance below award (4.6 EA; Award 11.4 and B1)

t. No ability to change roster with mutual consent (5.36-5.40 EA; Award 8.3(e)(i)).

u. Employees must work 10 Sundays/year to qualify for additional annual leave (under v. Award a ½ day leave will accrue per Sunday worked) (3.26 EA; Award 16.2)”

[8] Having considered the amended declarations provided by AHL, UV and the CPSU, on 26 June 2017 the Commission sent AHL an email (copied to UV and the CPSU) in the following terms:

“I refer to your application seeking approval of the Aboriginal Hostels Limited Enterprise Agreement 2017 (the Agreement). I note that following the second ballot regarding the Agreement that neither United Voice or the Community and Public Sector Union maintain their concerns regarding compliance with the pre-approval steps set out in the Fair Work Act 2009. However, both unions maintain that there are a number of less beneficial provisions in the Agreement when compared to the Australian Public Service Enterprise Award 2015 (the Award).

To assist me in determining whether or not the Agreement passes the Better Off Overall Test (BOOT) it would be appreciated if you could provide the following information with regard to:

• the shiftwork provisions of the Agreement (clauses 5.36 – 5.43) – it would be appreciated if you could advise how many shiftworkers (other than casual employees) work on a Sunday, the incidence of this occurring and the classification level of the shiftworkers that do so. In respect of casual employees, it would be appreciated if you could advise whether any work shiftwork, and if so the incidence and duration of this shiftwork on Monday to Friday and on Saturdays.



• Annual Leave Penalties (clause 5.44) – what do you estimate is the financial impact of this provision for those employees in receipt of shift penalties given that the Award provides for shift penalties to be paid to shiftworkers “in relation to any shifts the employee would have worked if the employee was not on approved annual leave.”



• Hostel Managers allowance in lieu of overtime – it would be appreciated if you could advise how many hostel managers are employed at a classification level which would attract overtime under the Award and how many hours overtime they would work on average each week. Further, having regard to your advice at the telephone conference regarding the application on 10 April 2017, it would be appreciated if you could also advise how many hostel managers, if any, are in receipt of restriction allowance as per clause 4.9 of the Agreement.



• Restriction Allowance (clauses 4.8 – 4.10) – it would be appreciated if you could advise how many employees are in receipt of the Allowance and the duration and days of the week upon which they are required to remain contactable.



• Community Language Allowance (clause 4.11) – it would be appreciated if you could advise how many employees are in receipt of the Allowance and their classification level.



• the issue of remote localities leave fares – it would be appreciated if you could advise how many employees are in receipt of District Allowance as per clause 4.27 of the Agreement and the implications, if any, for the BOOT of the absence of remote localities leave fares in the Agreement.

As you might infer from the above, I am concerned that as a result of the differences between the Agreement and the Award in respect of the above issues that the Agreement may not pass the BOOT …”

[9] AHL provided a comprehensive response on 30 June 2017 and provided further advice on 6 July 2017. In short, AHL advised that:

• there are 183 employees who work Sundays, with 83 employees at the APS 1 Level and 69 employees at the APS 3 Level;



• there are 70 of those employees who work two Sundays in a fortnight, with 42 of those 70 employees being APS 1 employees;



• casual staff are not employed on a regular and systematic basis, adding that the Agreement provides for a 4 hour minimum engagement whereas the Award does not provide for a minimum engagement period;



• averaged over a year the reduction in shift penalties payable under the Agreement whilst an employee is on annual leave would be equivalent to a reduction of 1.46 per cent of total remuneration;



• the Hostel Managers allowance in lieu of overtime only relates to those hostels where there is a Night Attendant on duty overnight so there is a person on duty to deal with any matters that arise overnight such that overtime is not required, adding that on rare occasions the Night Attendant may need to disturb the resident manager and that such incidents may only require advice or direction from the manager;



• there are 11 hostels where a Night Attendant is not on duty, with the 21 managers at those hostels to be paid the $50 Sleepover allowance under clause 4.20 of the Agreement and Restriction allowance as per clauses 4.8-4.10 of the Agreement;



• no AHL employees are currently paid Restriction allowance but the abovementioned 21 employees will receive the allowance under the Agreement;



• there are currently only 2 employees in receipt of the Community Language Allowance, with both of those employees employed at the top salary point for the APS 3 classification level;



• clause 12.5 (vii) of the Award states that “the entitlement to leave fares accrues on arrival at the locality” meaning that it is not applicable for residents in the locality who are engaged by AHL, adding that there are currently 6 employees who have been hired non-locally for fixed periods and therefore entitled to fares assistance under the Award with those employees being at the APS 4, 5 and 6 level and Executive Level 1.

[10] The material provided by AHL addressed most of the Commission’s BOOT related concerns. However, concerns remained about some aspects of the Agreement. Those concerns were set out in the following email which was sent by the Commission on 7 July 2017 to AHL and other bargaining representatives:

“Thank you for the further advice you provided on 30 June and 6 July 2017 in response to my request for further information regarding several aspects of the Aboriginal Hostels Limited Enterprise Agreement 2017 (the Agreement).

In the light of your advice, I am concerned that some APS 1 level employees (shiftworkers) who regularly work Sundays may not be better off overall under the Agreement given AHL’s advice that 83 APS 1 employees work shifts on Sundays and that 40 of these APS 1 employees work two Sundays each fortnight. This is because the lower Sunday shift loading provided for in the Agreement (150 per cent as opposed to 200 per cent under the Award), results in an hourly difference of $9.80 between what an employee on the lowest APS 1 pay point (i.e. APS 1 (GSO2)) under the Agreement would have earned under the Award ($40.34 per hour – see Schedule A.7) and the Agreement ($20.36 per hour x 1.5 = $30.54 per hour). This amounts to $73.50 over a 7.5 hour shift. Annualised for such an employee who works every second Sunday (and allowing for 5 weeks annual leave) the employee would be $1690.50 worse off under the Agreement (based on the employee working 23 Sundays in a year). For such employees who work two Sundays every fortnight the annualised figure is $3358 (based on the employee working 46 Sundays in a year). Looked at alternatively, an employee on the lowest APS 1 pay point under the Agreement would be worse off under the Agreement if he or she worked 16 or more Sundays in a year given that the annual salary for an employee on the lowest APS 1 pay point under the Agreement (i.e. APS 1 (GSO2)) is $1160 per annum above the Award rate.

Applying the same methodology, indicates that employees at the APS 1 first pay point would be worse off under the Agreement if they worked 23 or more Sundays in a year, employees at the APS 1 (GSO2) second pay point would be worse off under the Agreement if they worked 24 or more Sundays in a year, and APS 1 (GSO3) first pay point would be worse off under the Agreement if they worked 32 or more Sundays in a year.

While I acknowledge that there are other beneficial aspects of the Agreement which apply to this group of employees, they do not in my view completely compensate for the level of detriment set above, particularly as that level of detriment is increased as a result of the reduction in the level of shift penalties payable to shiftworkers whilst on annual leave.

As a result of the above concerns, I propose to list the application for hearing. You may prior to that hearing make submissions as to why the Agreement should be approved. If you wish to provide undertakings in respect of the above aspects of the Agreement prior to the hearing please forward them to my chambers. If having received your response I determine to approve the Agreement you will be advised and the hearing changed to an e-hearing.”

[11] AHL subsequently provided proposed undertakings to the Commission on 13 July 2017 in an attempt to address the Commission’s remaining concerns regarding the Agreement and following feedback from the Commission provided revised undertakings on 17 July 2017. A copy of the revised undertakings is attached at annexure A to this decision. Those revised undertakings address the Commission’s remaining concerns regarding the Agreement.

[12] Pursuant to s.190(4) of the Act I sought the views of bargaining representatives for the Agreement in respect of the undertakings proffered by AHL. UV and the CPSU advised that they were satisfied with the undertakings, while the remaining bargaining representatives either did not raise any objections or did not respond.

[13] Against that background, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[14] As noted, pursuant to s.190(3), I have accepted the attached undertakings from the Applicant. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement.

[15] Both UV and the CPSU have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers both organisations.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from

28 July 2017. The nominal expiry date of the Agreement is 27 July 2020.

ANNEXURE A

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