Autism Queensland Limited

[2016] FWCA 762

[2016] FWCA 762

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Autism Queensland Limited

(AG2015/6208)

AUTISM QUEENSLAND LIMITED EMPLOYEE COLLECTIVE

AGREEMENT 2015

Educational services

COMMISSIONER CRIBB MELBOURNE, 5 FEBRUARY 2016

Application for approval of the Autism Queensland Limited Employee Collective Agreement

2015.

[1]        An application has been made for approval of an enterprise agreement known as the

Autism Queensland Limited Employee Collective Agreement 2015 (the Agreement). The

application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been

made by Autism Queensland Limited (Autism Queensland). The agreement is a single-

enterprise agreement.

[2]        There were two objections to the application for approval of the Agreement. The first

one was from Mr S Beckinsale, an employee who, at the time the objection was made, would

be covered by the proposed Agreement. The Commission has been advised that Mr

Beckinsale will no longer be covered by the proposed Agreement. However, Mr Beckinsale’s

objection concerned employees not being advised about a change to a clause of the

Agreement which will result in employees no longer having the option of receiving an

additional day of annual leave when a public holiday falls on an employee’s rostered day off.

It was contended, therefore, that the employees did not genuinely agree to the approval of the

Agreement.

[3]        Autism Queensland responded to Mr Beckinsale’s objection and submitted that an

explanation document was provided to all employees which explained all of the major

different terms. As well, there were various unions and bargaining representatives who were

knowledgeable about the proposed Agreement together with feedback and open dialogue

between Autism Queensland and employees about the proposed agreement. Further, it was

explained that Mr Beckinsale and an employee bargaining representative were aware of this

change before voting commenced and that they raised their concerns with other affected

employees. This was said to have been confirmed by both employees in subsequent emails to

Autism Queensland. Autism Queensland submitted that the steps taken to explain the terms

of the agreement, and the effect of those terms, were reasonable and that there was no

requirement that there be a full explanation of the terms of the agreement. The Full Bench
[2016] FWCA 762

decision in McDonald’s Australia Pty Ltd v the Shop, Distributive and Allied Employees’

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Association (McDonald’s) was relied upon in this regard.

[4]        The Full Bench in McDonald’s stated that there is no requirement in the Act that there

be a full explanation of the terms of the agreement prior to employees voting on the

agreement. This means that an explanation of every term of a proposed agreement is not

required. Section 180(5) of the Act requires that the employer must take reasonable steps to

ensure that the terms of the agreement, and the effect of those terms, are explained to the

relevant employees. The explanation document which was provided to employees was eight

pages in length, four pages of which were devoted to an explanation of various clauses of the

proposed agreement. Therefore, I am satisfied that the employer took all reasonable steps to

explain the terms of the proposed agreement. There is no evidence before me that the failure

to explain that particular term was deliberate. There is evidence that the affected employees

had noted the change and that Autism Queensland then provided an explanation for the

change.

[5]        The second objection was made by the Australian Municipal, Administrative, Clerical

and Services Union (ASU) in relation to two principal issues. The first issue concerned

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Autism Queensland utilising the Clerks - Private Sector Award 2010 (Clerks Award) as the

relevant award for the Better Off Overall Test (BOOT) in relation to the administrative

employees to be covered by the proposed Agreement. The ASU submitted that the relevant

modern award for these employees was the Social, Community, Home Care and Disability

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Services Industry Award 2010 (SCHADS Award). It was argued that, because Autism

Queensland had utilised the Clerks Award, rather than the SCHADS Award, the Agreement

did not meet the BOOT test and so therefore should not be approved. Autism Queensland

provided written submissions in response which conceded that the Clerks Award was not the

relevant award in relation to the administrative employees. Rather, the relevant award was

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said to be the Educational Services (Schools) General Staff Award 2010	(Educational
Services General Award).

[6]        The ASU maintained its objection to approval of the agreement on the basis that the

appropriate award was the SCHADS Award and not the Educational Services General Award

and that, therefore, the Agreement did not pass the BOOT test in relation to the administrative

employees.

[7]        The application was listed for conference/hearing on Monday, 1 February 2016.

During the conference, it became clear that Autism Queensland was submitting that the

industry of the employer was educational services rather than social and community services.

Therefore, the relevant award in relation to the BOOT test for the administrative employees

was the Educational Services General Award. A further statutory declaration was provided

by Autism Queensland on 2 February 2016. The statutory declaration stated that Autism

Queensland operates in the educational services industry based on the services it provides and

the number of staff employed to provide those services. A breakdown of the employees who

were eligible to vote on the Agreement was also provided which showed that the vast majority

of employees are employed in educational services rather than in social and community
[2016] FWCA 762

services. The ASU then advised that the union has no further submissions in relation to this

matter.

[8]        On the basis of the statutory declaration, dated 2 February 2016, provided by Autism

Queensland, it would appear that the industry of the employer is educational services rather

than social and community services. Therefore, the relevant award in relation to the

administrative employees is the Educational Services General Award and not the SCHADS

Award. An undertaking that the administrative employees will be classified under the

Educational Services General Award has been provided by Autism Queensland. When the

Educational Services General Award is utilised in respect of the BOOT test, on the basis of

the submissions provided by Autism Queensland, dated 17 December 2015, the Commission

is satisfied that the proposed agreement with respect to the administrative employees, passes

the BOOT test.

[9]        In addition, in relation to the bus drivers, bus escorts, maintenance and cleaning

employees who will be covered by the proposed Agreement, Autism Queensland has

provided an undertaking that these employees will also be classified under the Educational

Services General Award. When the relevant terms of the proposed Agreement for these

employees are assessed under the BOOT test against the Educational Services General

Award, the proposed Agreement meets these requirements.

[10]      The second issue of concern to the ASU was in relation to whether the provisions in

the proposed Agreement for disability support workers were less favourable when compared

to the SCHADS Award. Autism Queensland, in its submissions dated 17 December 2015,

provided a BOOT wages calculation comparing the proposed Agreement with the SCHADS

Award for disability support workers, based on the typical roster that these employees work.

There was a detailed discussion about this issue during the conference on 1 February 2016.

As a result, the Commission is satisfied that the proposed Agreement meets the BOOT test

with respect to the disability support workers.

[11]      As indicated above, an undertaking has been given with respect to clauses 60.1, 67.1

and 67.2 and is taken to be a term of the Agreement. A copy of the undertaking is attached to

this Decision as Annexure A and can also be found at the end of the Agreement.

[12]      Subject to the undertaking referred to above, 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.

[13]      The Australian Municipal, Administrative, Clerical and Services Union (ASU),

Independent Education Union of Australia (IEUA) and Together Queensland, Industrial

Union of Employees (TQIUE), being bargaining representatives for the Agreement, have

given notice under s.183 of the Act that they want the Agreement to cover their respective

organisations. In accordance with s.201(2) of the Act I note that the Agreement covers both

of these organisations.
[2016] FWCA 762

[14]      The Agreement is approved and, in accordance with s.54 of the Act, will operate from

12 February 2016. The nominal expiry date of the Agreement is 11 February 2018.

[2016] FWCA 762

ANNEXURE A

Printed by authority of the Commonwealth Government Printer

<Price code J, AE417706 PR576751>

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[2010] FWAFB 4602

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MA000076