Armest Pty Ltd T/A Miles Witt Partnership

[2020] FWCA 1573

[2020] FWCA 1573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership
(AG2019/3942)

JETA GARDENS ENTERPRISE AGREEMENT 2019

Aged care industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 25 MARCH 2020

Application for approval of the Jeta Gardens Enterprise Agreement 2019.

Background

[1] Armest Pty Ltd T/A Miles Witt Partnership (the Applicant) applies to Fair Work Commission (the Commission) for approval for an enterprise agreement known as the Jeta Gardens Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Correspondence was sent by the Commission to the Applicant, the Queensland Nurses and Midwives Union division of Australian Nursing and Midwifery Federation (QNMU), the Australian Workers’ Union (AWU) and United Workers’ Union (UWU) on 4 December 2019 setting out concerns in relation to pre-approval steps, inconsistencies with the National Employment Standards and whether the Agreement passes the better off overall test (BOOT) when compared to the Aged Care Award 2010 and Nurses Award 2010.

[3] On 10 December 2019, the Applicant corresponded with the Commission in relation to the concerns and provided signed undertakings.

[4] On 12 December 2019, the QNMU wrote to the Commission advising that the Union still had outstanding concerns in relation to the Applicant’s correspondence of 10 December 2019. The UWU sent correspondence to the Commission on 24 February 2020 advising that it did not wish to be further heard in relation to the matter, as it appeared as though all issues relevant to the UWU’s areas of coverage had been resolved by the correspondence and undertakings from the Applicant. The AWU, in response to an enquiry from me, stated that its current membership is unaffected by the clauses in dispute, but that the AWU supported the submissions of the QNMU.

Hearing

[5] A hearing into the application for approval was held on 25 February 2020. Oral submissions were made at the hearing by the Applicant, the QNMU and the AWU. I have had regard to all submissions and material advanced by the Applicant and the Unions. The issues of concern raised by the QNMU can be summarised as follows:

● Registered Nurses employed at level 4, grades 2 and grade 3 under the Nurses Award 2010 (the Award) are worse off under the Agreement and therefore the Agreement does not pass the BOOT (the classification issue); and
● The Agreement does not provide for the additional week of annual leave for shift workers which is provided for under clause 31.1 of the Nurses Award 2010 (the annual leave issue.

[6] In relation to the classification issue, the Applicant submitted that the Agreement is not expressed to cover Registered Nurses who may meet the definition for a Level 4 Grade 2 or Grade 3 Registered Nurse under the Award. In my view that submission is correct. By virtue of clause 4, the Agreement covers employees engaged in the classifications in Schedules A and B of the Agreement. In relation to Registered Nurses Schedule B refers only to those employed at Level 4 Grade 1.

[7] Accordingly, if a Registered Nurse is employed by the Applicant who meets the definition for Level 4 Grade 2 or Grade 3 under the Award that employee will not be covered by the Agreement and will be covered by the Award. I also note that this scenario is unlikely given that the classification definition under the Award for Registered Nurse Level 4 is limited and with respect to whether an employee is a Registered Nurse Level 4 Grade 2 or 3 is essentially at the discretion of the employer. Accordingly, this matter is not a detriment when the Agreement is compared to the Award and is not relevant to whether the Agreement passes the BOOT.

[8] In relation to the annual leave issue, the Award provides as follows at clause 31.1:

“31.1 Quantum of annual leave

(a) In addition to the entitlements in the NES, an employee is entitled to an additional week of annual leave on the same terms and conditions.

(b) For the purpose of the additional weeks annual leave provided by the NES, a shiftworker is defined as an employee who:

(i) is regularly rostered over seven days of the week; and

(ii) regularly works on weekends.

(c) To avoid any doubt, this means that an employee who is not a shiftworker for the purposes of clause 31.1(b) above is entitled to five weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 31.1(b) above is entitled to six weeks of paid annual leave for each year of service with their employer.”

[9] The Agreement provides at clause 31.1 as follows:

“31. Annual leave

31.1 Every full-time and part-time employee shall for each year be entitled to annual leave on full pay as follows:

(a) For the purposes of the NES, not less than six weeks for employees employed as continuous shift workers where work is performed in three shifts per day (morning, afternoon and night) per 24 hour period, over seven days per week, and where employees are regularly rotated through such shifts over a 12 month period; and

(b) not less than five weeks in any other case.

(c) An employee whose employment is terminated prior to the expiration of a full year of employment shall be entitled to a pro-rata equivalent of annual leave as provided for above.”

[10] The Award provision in relation to annual leave provides an additional leave benefit to that provided in the NES. All employees under the Agreement will be entitled to the additional week of leave under the NES. The effect of the Agreement provision in relation to the additional entitlement under the Award is to narrow the circumstances in employees will be entitled to the additional week of leave under the Award. I accept that the wage rates in the Agreement are sufficiently in excess of those under the Award so that this matter does not constitute a detriment which would cause the Agreement to fail the BOOT.

[11] The QNMU conceded that “in monetary terms”, the Agreement passed the BOOT in this regard. However, the QNMU submitted that, irrespective of the fact employees may not be worse off in a monetary basis, employees may be worse off in a non-monetary sense, as the additional week is provided for the health and safety of nurses. While I accept that this may be the case, the Agreement provides for rates that range between 14.52% to 22.76% above the Award and in my view those rates compensate for any reduction in the entitlement to the additional week of annual leave in circumstances where employees already have the benefit of the fifth week provided for in the NES as of right regardless of whether or not they are continuous shift workers.

Conclusion

[12] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. Pursuant to s.190 of the Act, I accept the Applicant’s undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[13] The Australian Nursing and Midwifery Federation, the Australian Workers’ Union and the United Workers Union have given notice under s.183 of the Act that they want the Agreement to them. In accordance with s. 201(2) of the Act I note the Agreement covers these organisations.

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

[15] The Agreement is approved in accordance with s. 54 of the Act and will operate from 1 April 2020. The nominal expiry of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

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