Armest Pty Ltd T/A Miles Witt Partnership

[2023] FWCA 1128

[2023] FWCA 1128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership

(AG2023/439)

SUNNYMEADE AND QNMU - NURSES ENTERPRISE AGREEMENT 2022

Aged care industry
COMMISSIONER SPENCER	BRISBANE, 20 APRIL 2023

Application for approval of the Sunnymeade and QNMU - Nurses Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Sunnymeade and QNMU - Nurses Enterprise Agreement 2022 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Armest Pty Ltd T/A Miles Witt Partnership (the Applicant). The Employer is Jomal Pty Ltd Trading as Sunnymeade Park Aged Care Community (the Employer). The Agreement is a single enterprise agreement.

1. Submissions were sought from the Applicant and the bargaining representative, being the Queensland Nurses and Midwives’ Union division of Australian Nursing and Midwifery Federation (the Union), on clause 31.1(a) of the agreement regarding annual leave for shift workers in relation to the better off overall test.

1. Under the National Employment Standards (NES), shift workers are entitled to a minimum of five weeks annual leave. Under the Nurses Award 2020 (the Award), employees who meet the definition of shift worker are entitled to six weeks annual leave, with five weeks being standard. The relevant agreement clause employs a narrower definition of shift worker than under the Award.

1. In summary, the Union submitted that an undertaking to bring the clause in line with the Award definition of a shift worker for the purposes of the NES was required by sections 187(4) and 196 of the Act in order for the agreement to be capable of passing the better off overall test. Reference was also made to the imminent 15% wage increase in the aged care industry due to commence on 30 June 2023,[1] in assessing the wage rates under the agreement. It is noted that the operation of section 206 of the Act requires employees to be paid Award equivalent rates.

1. The relevant test time for conducting the better off overall test is at the time the application is made to the Commission, being 24 February 2023. The Applicant submitted that at that time, rates of pay between 3.31-30.37% above Award offset any detriment of the loss of one week of annual leave for those employees who would under the Award, be entitled to six weeks.

1. The better off overall test is subjective and requires consideration of monetary and non-monetary considerations, weighing advantageous with disadvantageous matters to form an overall view.[2] This weighing exercise involves the exercise of discretion and a degree of subjectivity or value judgement to be considered at the test time.[3]

1. Reference was made to six prior enterprise agreement approval decisions, as cited below, where it is recognised a similar shift worker annual leave provision was approved with no undertaking, taking into account above Award wage rates.[4]

1. Relevant to the comparison with those decisions, the Employer provided an undertaking that no employees were currently employed at the lowest classification, being only 3.31% above Award rate, and no employees would be for the life of the agreement. Therefore, the wage rates for the agreement range between 6.84-30.37% above Award wage rates, for the purposes of the better off overall test.

1. The Applicant had also quantified an additional week of annual leave as a wage equivalent of between 1.92% and 2.5%. Therefore, it was determined that this was incorporated and compensated for by the above Award wage rates.

1. The remainder of the agreement is substantially the same as the conditions provided for under the Award. The agreement also has a nominal expiry date of 30 June 2024, being not more than 12 months after the Award pay rate increase. I am therefore satisfied this agreement meets the better off overall test, consistent with the approach taken in similar circumstances in other enterprise agreement approvals.[5]

1. Subject to the matter that has been addressed by way of an undertaking, I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. As noted, pursuant to section 190(3), I have accepted an undertaking from the employer. In accordance with sections 191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

1. The Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 April 2023. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

[1] Application by Health Services Union to vary minimum wage rates in the Social, Community, Home Care and Disability Services Industry Award 2010 [2023] FWCFB 40.

[2] Re Solar Systems Pty Ltd[2012] FWAFB 6397.

[3] Transport Workers Union v Jarman Ace Pty Ltd T/A Ace Buses[2014] FWCFB 7097.

[4] Application by Armest Pty Ltd T/A Miles Witt Partnership [2022] FWCA 1923 (‘Carinya’); Application by Armest Pty Ltd T/A Miles Witt Partnership [2022] FWCA 825 (‘Lions Haven’); Application by Armest Pty Ltd T/A Miles Witt Partnership [2022] FWCA 423 (‘Glenella’); Application by Armest Pty Ltd T/A Miles Witt Partnership [2020] FWCA 1573 (‘Jeta Gardens’); Application by Armest Pty Ltd T/A Miles Witt Partnership [2020] FWC 3944 (‘Good Shepherd’) and Application by Armest Pty Ltd T/A Miles Witt Partnership [2020] FWCA 3464 (‘Hill View’).

[5] See Application by Armest Pty Ltd T/A Miles Witt Partnership [2020] FWCA 1573 (‘Jeta Gardens’) at [10] – [11].

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