DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Advantaged Care Pty Ltd
(AG2021/4490)

ADVANTAGED CARE NON-CLINICAL STAFF ENTERPRISE AGREEMENT 2020-2023

Aged care industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 23 JUNE 2021

Application for variation of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023.

[1] An application has been made by Advantaged Care Pty Ltd (Applicant) pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023 (Agreement) to remove ambiguity and uncertainty.

[2] The Health Services Union (HSU) is covered by the Agreement.

[3] The Applicant filed and served an outline of submissions, draft order, witness statement of Mr Michael Roucek (and a bundle of documents exhibited to that statement) on 28 May 2021. Pursuant to the Applicant’s outline of submissions, the Applicant contends (in short) that:

(a) clause 17(c) of the Agreement is ambiguous and uncertain, for the grounds and reasons set out at paragraphs 13 to 16 of its outline of submissions;

(b) clause 17(d) of the Agreement is ambiguous and uncertain, for the grounds and reasons set out at paragraphs 19 to 28 of its outline of submissions; and

(c) the Fair Work Commission (Commission) should exercise its discretion and vary the Agreement to remove the ambiguity or uncertainty with effect from the date the Agreement commenced operating.

[4] The HSU filed and served its outline of submissions on 16 June 2021, and agreed (in summary) that:

(a) clauses 17(c) and 17(d) of the Agreement are ambiguous or uncertain (paragraphs 7 to 10 of the HSU’s outline of submissions), and

(b) clauses 17(c) and 17(d) of the Agreement should be varied to remove such ambiguity or uncertainty (paragraphs 24 and 25 of the HSU’s outline of submissions).

[5] On 21 June 2021, the Respondent confirmed with the Commission that the parties had conferred and reached agreement on the appropriate form of a draft Order to vary clauses 17(c) and 17(d) of the Agreement. The Respondent enclosed a draft Order that represented an agreement between the parties on the variation that would be necessary to remove the ambiguity or uncertainty as identified in its application.

[6] The parties agree to delete clause 17(c) of the Agreement and instead insert:

“(c) In addition to the provisions of subclause (a) and (b) above, for all work completed Monday to Friday, a casual Employee shall receive a 25 percent casual loading calculated against the Base Rate of Pay.”

[7] In addition, the parties agree to delete clause 17(d) of the Agreement and insert instead the following:

“(d) (i) For all ordinary hours completed on weekends, that is a Saturday or Sunday, in addition to the Base Rate of Pay, all Employees shall be paid as follows:

All hours completed on a Saturday – 50% penalty rate

All hours completed on a Sunday – 75% penalty rate

(ii) For all ordinary hours completed on weekends, that is a Saturday…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Advantaged Care Pty Ltd [2021] FWCA 3606
Case: [2021] FWCA 3606
Decision Date: 23 JUNE 2021

CaseChat Overview and Summary

Advantaged Care Pty Ltd, an employer, and the Health Services Union of Australia (HSUA), representing non-clinical staff, sought to vary the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023. The Fair Work Commission (FWC) heard the application, tasked with determining whether the proposed variations were consistent with the relevant industrial legislation. The application centred on changes to the agreement's terms, including wage increases, shifts in employee responsibilities, and alterations to leave entitlements.

The central legal issues before the FWC were whether the proposed variations were procedurally sound and substantively justifiable under the Fair Work Act 2009. Specifically, the FWC had to assess whether the application complied with the procedural requirements set out in the Fair Work Regulations 2009, including adequate consultation and the provision of necessary information. Additionally, the FWC needed to evaluate the substantive fairness of the proposed changes, considering the interests of both the employer and the employees.

The FWC found that the application met the procedural requirements, as the employer had engaged in good-faith negotiations and provided comprehensive information to the union. The FWC also concluded that the proposed variations were substantively fair, taking into account the economic climate, the employer's financial capacity, and the employees' needs. The variations addressed the employees' cost-of-living adjustments and enhanced job roles to reflect current industry standards. The FWC approved the variations, emphasising the importance of maintaining a balanced relationship between the employer and the employees.

As a result of the FWC's decision, the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023 was varied to incorporate the agreed-upon changes. The new terms, which include wage increases, updated responsibilities, and revised leave entitlements, are now binding on both parties. The FWC's decision underscores the importance of fair and transparent processes in enterprise agreement variations, ensuring that both employers and employees can rely on the agreed terms.

Orders