Bradley Allen Love

[2014] FWCA 6698

[2014] FWCA 6698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bradley Allen Love
(AG2014/1382)

CARERS ACT ENTERPRISE AGREEMENT 2014.

Social, community, home care and disability services
DEPUTY PRESIDENT BOOTH	SYDNEY, 25 SEPTEMBER 2014

Application for approval of the Carers ACT Enterprise Agreement 2014.

[1] An application has been made to the Fair Work Commission for the approval of an enterprise agreement known as the Carers ACT Enterprise Agreement 2014. The application was made pursuant to s.185 of the Fair Work Act 2009. The agreement is a single-enterprise agreement. The agreement was made on 29 May 2014. 62 employees cast a valid vote in the ballot concerning the agreement and 46 of those employees voted for the agreement. The agreement will cover 78 employees.

[2] If am satisfied that each of the requirements of s.186, 187 and 188 of the Act, as are relevant to this application for approval have been met, I must approve the agreement.

[3] One such requirement (s.186 (d)) is that the agreement must pass the ‘better off overall test’ found in s.193 of the Act.

[4] The Australian Services Union (ASU), being a bargaining representative for the agreement, has given notice under s.183 of the Act that they want the agreement to cover them. In so doing the ASU brought the Commission’s attention to a number of aspects of the agreement that they believe mean that the agreement does not pass the better off overall test and should not be approved without undertakings.

[5] Clause 16 “New classifications” provides, in certain circumstances, for the prospective creation of a new classification, new level or new minimum rate of pay. I consider that it is not possible to apply the better off overall test to the agreement with this clause contained in it. I cannot compare the application of the relevant modern award (Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCADS Award)) and the agreement to prospective employees if their classification level and minimum rate of pay are not yet contained in the agreement.

[6] Carers ACT contend that the agreement with this clause contained does pass the better off overall test because clause 16 also contains a provision that requires that any new classification, level or rate of pay result in the employee being better off overall than if the relevant award applied to them. This safeguard does not satisfy me that I can apply the better off overall test at the time of approval of the agreement (test time) because I do not know what the new classification, level or rate of pay might be.

[7] Carers ACT have offered the following undertaking to address my concern:

Carers ACT Incorporated undertakes pursuant to section 190 of the Act:

1. That it will read and otherwise implement the Carers ACT Enterprise Agreement 2014 (‘the Agreement’) as if clause 16 were deleted from the Agreement.

[8] I am satisfied that this undertaking satisfies my concern.

[9] The views of bargaining representatives were sought concerning this undertaking. All the employee bargaining representatives, including the ASU, support this undertaking; although the ASU remains concerned that an employee who would otherwise be covered by the SCHCADS Award who was employed by Carers ACT after the approval of the agreement may not be covered by the agreement, leaving some employees covered and some employees outside the agreement.

[10] This would be the case if the employee was performing work that was not covered by the agreement. The agreement covers employees who fall within the classifications contained in Schedule 2, namely, Social and Community Service Employees over 8 levels and Home Care Employees over 5 levels. These classifications line up with the classifications of the same name in the SCHCADS Award.

[11] Two other classification streams are contained within the SCHCADS Award, namely, Crisis Accommodation Employees and Family Day Care Employees. The agreement does not contain these classifications and by virtue of clause 3 “Agreement Coverage”, employees engaged in this work are not covered by the agreement. This is the logical consequence of the coverage that has been agreed by Carers ACT and their employees. This does not mean that the agreement does not pass the better off overall test.

[12] The agreement passes the better off overall test if an employee would be better off overall if the agreement applied to them than if the relevant modern award applied to them. The test applies to award covered employees who are covered by the agreement, not those who are not.

[13] The ASU also say that the agreement does not pass the better off overall test because clause 22, “Rates of Pay” anticipates the wrongful classification and payment of respite care employees as homecare sector workers.

[14] Carers ACT have offered the following undertaking to address this concern:

2. That it will read and apply the Agreement as follows:

● Employees classified as ‘Social and Community Services Employees (SACS)’ under Schedule 2 Classifications are those who are employed in the ‘social and community services sector’ (as defined in the Social, Community, Home Care and Disability Services Industry Award 2010 (‘the Modern Award’)).

● Employees classified as ‘Home Care Employees (HCE)’ under Schedule 2 Classifications are those who are employed in the ‘home care sector’ (as defined in the Modern Award).

[15] I am satisfied that this undertaking clarifies the coverage of the agreement and I accept it.

[16] The views of bargaining representatives were sought concerning this undertaking. All the employee bargaining representatives, including the ASU, support this undertaking. However, the ASU believes further information about the work performed is required, and an undertaking should be given, to ensure the employees are not incorrectly classified.

[17] In particular they are concerned that Carers ACT may engage employees who are SACS employees and wrongly classify them as Home Care employees. By so doing they say that such employees would be denied the rate of pay resulting from the application of the Equal Remuneration Order (ERO) that covers SACS employees but not Home Care employees. Clause 22 “Rates of Pay” of the agreement preserves the application of the ERO for all existing employees classified as Home Care employees. This provision does not reassure the ASU. It concerns the ASU that this provision is included in the agreement because they say it suggests that Carers ACT currently employ Home Care employees. The ASU say they are not satisfied that employees who may be currently classified as Home Care employees, notably “host family workers”, are correctly classified. This, they say, means that the agreement does not pass the better off overall test and I should not approve the agreement.

[18] As I have indicated above the agreement passes the better off overall test if an employee would be better off overall if the agreement applied to them than if the relevant modern award applied to them. I think it is implicit that I must test the agreement against the award as if the agreement was correctly applied to the employees concerned. There are many ways that the benefits of an agreement could be denied to an employee. It is not the experience of the employee who is subject to agreement that is breached that is to be compared; rather it is the experience of an employee enjoying the benefits of the agreement correctly applied whose experience I must consider in comparison to that of the same employee covered by the award.

[19] If an employee believes that they are not correctly classified they may avail themselves of clause 7, Dispute Resolution Procedure or take enforcement proceedings. An apprehension that the agreement may be breached is not a reason not to approve it.

[20] The classifications in the agreement line up with the relevant classifications in the award and the rates of pay in the agreement are higher than those in the award. This along with other benefits of the agreement mean that I am satisfied that the agreement passes the better off overall test and the requirements of s.186, 187 and 188 of the Act, as are relevant to this application for approval have been met.

[21] The written undertaking concerning Clause 16 and Schedule 2 will be taken to be a term of the Agreement pursuant to s.191 of the Act. A copy of the undertaking is attached to this decision. The Agreement is approved with the Undertaking.

[22] The agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2014. The nominal expiry date of the agreement is 1 June 2017.

DEPUTY PRESIDENT

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