Application by Mouna Mhaimah

[2021] FWCA 3638

[2021] FWCA 3638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Application by Mouna Mhaimah
(AG2020/3825)

COMMUNITY LIVING & RESPITE SERVICES INC. ENTERPRISE AGREEMENT

Social, community, home care and disability services
COMMISSIONER YILMAZ	MELBOURNE, 25 JUNE 2021

Application for termination of the Community Living & Respite Services Inc. Enterprise Agreement.

[1] Ms Mouna Mhaimah (Applicant) has made an application for the Fair Work Commission (Commission) to terminate the Community Living & Respite Services Inc. Enterprise Agreement (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The application for termination was made on 10 December 2020. The Agreement expired on 26 March 2014.

[2] Community Living & Respite Services (Community Living) is a non–government, not for profit organisation. It provides disability services in Echuca, Moama and surrounding districts and is registered with the National Disability Insurance Scheme (NDIS).

[3] In approving the Agreement on 19 March 2010, which was made during the bridging period as defined by Item 2, Part 1 of Schedule 2, then Commissioner Whelan noted in her approval decision that despite undertakings provided by Community Living, she was not satisfied that the Agreement would necessarily pass the no disadvantage test having regard, in particular, to the rates paid to direct support workers and home care workers providing services on the weekends when those rates were compared against the penalty rates contained in the relevant industrial reference instruments. The relevant industrial instruments at the time were the Attendant care Victoria Award 2004 and the Residential and Support Services (Victoria) Award 1999. Despite not being satisfied that the Agreement passed the no disadvantage test, Commissioner Whelan approved the Agreement with undertakings on the grounds of public interest and the exceptional circumstances within the meaning of s.189(2) of the Act considering the needs of the clients of the service, the not-for-profit status of the organisation and the funding constraints which challenged the organisation at the time of approval.

[4] Since approval of the Agreement the relevant industrial instrument for the purpose of the better off overall test is the Social, Community Home Care and Disability Services Award (SCHADS Award). The Form F24C – Statutory declaration (the declaration) lodged with the application confirms that the reason the Applicant seeks for the Agreement to be terminated is that employees would be better off overall in terms of pay and entitlements, if they were covered by the SCHADS Award as opposed to being engaged under the Agreement.

[5] Relevantly in support of her application, the Applicant referred to the penalty rates for weekends and afternoon shift under the SCHADS Award which are not reflected in the Agreement, the classification structure and benefits associated with the structure in the SCHADS Award which is not provided for in the Agreement and she submits that termination of the Agreement would be in the public interest as continual application of the Agreement would continue to disadvantage employees.

[6] On 11 November 2020, my chambers wrote to Community Living attaching the application and supporting documents filed with the Commission and invited them to provide their view in relation to the application and whether it wished to be heard.

[7] On 14 November 2020, Community Living notified my chambers that they did wish to be heard and confirmed their objection to the application.

[8] The matter was subsequently listed for mention/directions by telephone which took place before me on 15 January 2021. At the mention/directions the Applicant was self-represented, accompanied by a support person and Community Living was represented by Mr Jim McKenna of counsel.

[9] Following the mention/directions, my chambers issued Directions to the parties which outlined the considerations I am required to take into account in considering an application for termination of the Agreement under s.226 of the Act, including the dates for filing of materials by the parties, directions for any other employees seeking to be heard and listed for hearing on Friday 26 March 2021.

[10] In order to ensure that all employees covered by the Agreement were made aware of their right to be heard in relation to this application, I requested that Community Living notify each employee of the application and provide them with a copy of my Directions. I also advised the parties that the matter would be listed for conference on 22 March 2021 to answer any questions that interested employees may have and for a report back on the progress of discussions between the Applicant and Community Living.

[11] After the Directions were issued to the parties, my chambers received submissions from the Applicant and a number of other interested employees who are currently covered by the Agreement. A substantial majority of those employees filed submissions in support of termination of the Agreement while a number of employees also raised concerns about potentially not being better off overall if being covered by the SCHADS Award would result in the loss of the sleepover allowance currently afforded to them under the Agreement.

[12] On 15 February 2021, the Health and Community Services Union (HACSU) notified my chambers that they wish to be heard in relation to the application and attached submissions in support of the Agreement, provided calculations and four draft undertakings sought from Community Living.

[13] On 2 March 2021, Community Living requested that the conference scheduled for 22 March 2021 be brought forward in recognition of the fact that the application to terminate had merit, noting the support of a number of employees and acknowledging that a number of employees would be better off overall if the Agreement were terminated. The request was made for a conference to be scheduled to a date prior to Community Living having to file its materials in accordance with the Directions.

[14] The conference was re-listed as requested and took place before me on 9 March 2021. Present at the conference was the Applicant, Mr Martin Davis and Mr Byron Loader of HACSU, three employees of Community Living being Ms Fitzmaurice, Ms Weaver and Ms Campbell, Ms Leah Taaffe, CEO of Community Living, and Ms Skye Engwerda the legal representative of Community Living.

[15] The discussion held at conference on 9 March 2021 between all interested parties confirmed Community Living’s interest to work through a number of matters with HACSU and interested employees with a view to terminate the Agreement. In view of the common position to terminate the Agreement, my directions were set aside and a schedule to work through the remaining matters before termination of the Agreement was agreed.

[16] Between 19 March 2021 and 7 June 2021, my chambers was informed of progress regarding entitlements provided by the Agreement that would be retained once the Agreement is terminated and the transition plan towards coverage under the SCHADS Award.

[17] A further conference was held before me on 13 April 2021 and while Mr Martin Davis of HACSU was unable to attend, the conference proceeded with HACSU delegates in attendance. Community Living advised of its progress on implementing a new payroll system to accommodate provisions of the SCHADS Award from 28 June 2021, that employee consultations regarding the impending changes were on foot, that employee classifications, rosters and other transitional arrangements were being finalised. Community Living further gave an undertaking that the sleepover allowance under the Agreement would be maintained following the termination of Agreement.

[18] Subsequent correspondence was received from Community Living confirming that the payroll system and other measures would meet the scheduled date of 28 June 2021. Community Living provided an undertaking to maintain the sleepover rate from the Agreement following its termination. The undertaking is attached to this decision and marked as Annexure A.

[19] The application for termination of the Agreement was made after its nominal expiry date by an employee covered by the Agreement. Employees of Community Living were given the opportunity to be heard and a number had made submissions supporting termination of the Agreement. Employees raised concerns regarding transition arrangements, sought confirmation of their applicable classification level, information on the impact on rosters and application of penalty rates and they raised concern that the sleepover rate contained in the Agreement would cease with the termination of the Agreement. Community Living addressed each of the employee concerns and queries. HACSU also made submissions and participated in proceedings. I am satisfied that on assessment of the submissions and materials filed in the Commission that termination of the Agreement is not contrary to the objects of the Act.

[20] Having regard to the views of employees and the circumstances of those employees and the employer, the effect of the termination of the Agreement on them I am satisfied that employees would be better off overall if covered by the SCHADS Award. The employer has made arrangements for the transition and addressed employee concerns. Accordingly, I consider it appropriate to terminate the Agreement.

[21] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will operate from 27 June 2021.

COMMISSIONER

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Annexure A