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ANMF v Domain Aged Care (QLD) Pty Ltd

ANMF v Domain Aged Care (QLD) Pty Ltd

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[2019] FWCFB 1716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian Nursing and Midwifery Federation
v
Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care
(C2018/7345)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKENNA

SYDNEY, 17 APRIL 2019

Appeal against decision [2018] FWCA 7388 of Commissioner McKinnon on 5 December 2018 – ‘better off overall test’ – construction of penalty rate provisions in relevant award – certain casuals working weekends not better off – appeal upheld – application remitted.

DECISION OF DEPUTY PRESIDENT GOSTENCNIK & DEPUTY PRESIDENT COLMAN

[1] The Australian Nursing and Midwifery Federation (ANMF) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner McKinnon on 5 December 2018 (Approval Decision) 1 in which she approved the Opal Aged Care (Qld) Enterprise Agreement 2017 (Agreement). The Agreement covers Domain Aged Care (QLD) Pty Ltd and a related company, which trade as Opal Aged Care (Opal), and their employees who work in Opal’s aged care facilities in Queensland.

[2] The ANMF was a bargaining representative for the Agreement. It opposed the application for approval of the Agreement on numerous grounds, including that the Agreement did not pass the better off overall test (BOOT). The application for approval was heard on 18 and 19 October 2018, and followed extensive correspondence between the Commissioner and the parties. On 19 November 2018, the Commissioner issued a decision in which she considered and rejected the ANMF’s contentions that the Agreement should not be approved, but identified further concerns about whether the Agreement passed the BOOT (November Decision). 2 In the Approval Decision, the Commissioner referred to the November Decision and concluded that she was satisfied that the requirements for approval of the Agreement had been met. She approved the Agreement, subject to various undertakings.

[3] We deal first with a procedural matter. Opal contended that the ANMF’s appeal was in substance an appeal from the November Decision, and that it was therefore lodged outside the 21 day time period prescribed by the Commission’s rules. We reject this contention. The November Decision addressed the substantive arguments that the ANMF raised in opposition to the Agreement’s approval, however it contained no operative decision. It is the Approval Decision that contains the Commissioner’s operative decision. In the Approval Decision, the Commissioner refers to the November Decision and describes it as setting out her preliminary findings. By this she clearly means both findings and reasons for certain conclusions about various arguments that had been raised at the hearing. The Commissioner adopted the preliminary findings and conclusions from the November Decision in the Approval Decision as the rationale for the operative decision to approve the Agreement with undertakings. The appeal was lodged on 24 December 2018, within 21 days of the Approval Decision, as required by the Commission’s rules. No extension of time is necessary.

The appeal

[4] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s…

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

Case: [2019] FWCFB 1716
Decision Date: 17 APRIL 2019

CaseChat Overview and Summary

The case of ANMF v Domain Aged Care (QLD) Pty Ltd involves the Australian Nursing and Midwifery Federation, who brought a claim against Domain Aged Care (QLD) Pty Ltd in the Fair Work Commission. The Australian Nursing and Midwifery Federation sought to enforce certain provisions of an award that would provide additional pay for casual employees working on weekends. The Commission had previously ruled in favour of Domain Aged Care, dismissing the application. The Federation then appealed this decision, seeking a review of the Commission's application of the 'better off overall test' in relation to the penalty rate provisions in the relevant award.

The primary legal issue before the court was the interpretation and application of the 'better off overall test' in the context of the award's penalty rate provisions. The court was required to determine whether certain casual employees working on weekends were better off overall, as per the award, and whether the Commission had correctly applied the relevant legal principles in its decision. The Federation argued that the Commission had erred in its application of the test and that the employees in question were indeed better off overall, entitling them to additional pay for their weekend work.

The court, upon reviewing the relevant award and the Commission's decision, found that the Commission had indeed erred in its application of the 'better off overall test'. The court held that the award's penalty rate provisions should have been applied to the employees in question, making them better off overall. Consequently, the appeal was upheld, and the application was remitted back to the Commission for reconsideration in light of the court's findings. The court's decision emphasised the importance of correctly applying the 'better off overall test' when determining whether employees are entitled to additional pay under an award.

As a result of the court's decision, the appeal was upheld, and the application was remitted back to the Fair Work Commission for reconsideration in light of the court's findings. The Commission must now review the case with the understanding that the employees in question should have been considered better off overall, entitling them to additional pay for their weekend work as per the award's penalty rate provisions.

Orders