Burles Consulting Pty Ltd
[2025] FWCA 256
•22 JANUARY 2025
| [2025] FWCA 256 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Burles Consulting Pty Ltd
(AG2024/4792)
EVERGREEN LIFE CARE ENTERPRISE AGREEMENT 2024-2027
| Aged care industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 22 JANUARY 2025 |
Application for approval of the Evergreen Life Care Enterprise Agreement 2024-2027
Introduction
Burles Consulting Pty Ltd (Burles Consulting) has made an application for approval of an enterprise agreement known as the Evergreen Life Care Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Employer covered by the Agreement is Evergreen Lifecare Ltd (the Employer). Burles Consulting is a bargaining representative appointed by the Employer.
The Agreement will apply to employees who are covered by either the Nurses Award 2020 (Nurses Award), the Aged Care Award 2020 (Aged Care Award) or the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award)
Casual Employees Entitled to Vote
The Employer advised the Commission that 66 employees covered by the Agreement are casual employees. The Employer submitted that 36 of the 66 casual employees were employed during the access period and entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,[1] the requirement in s. 181(1) of the Act has been met.
National Employment Standards (NES) Issues
The Commission raised the following issues with the Employer regarding the NES:
Clause 34.6 of the Agreement provides that the Employer will allow permanent employees to take up to 20 days paid family and domestic violence leave. This appears inconsistent with s 106A of the Act which allows all employees (including casuals) to take paid family and domestic violence leave.
Clause 35 of the Agreement contains provisions for compassionate leave, however, it is silent in relation to compassionate leave for stillbirth/miscarriage as provided by s.104(1)(b) and (c) of the Act.
Clause 20.6(e) of the Agreement states that the Employer and employees may agree to substitute another day for a public holiday observed at clause 20.6. This appears inconsistent with s.115(3) of the Act which provides that an employer and individual employee may agree on the substitution of a day or part-day of a public holiday.
Clause 51.2 of the Agreement provides that in the case of termination, if the required notice is not given by the employee, then the Employer has the right to deduct any outstanding notice in accordance with the contract of employment. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the Employer to withhold monies owing to the employee under the NES and as such may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
Allowances
The Agreement is silent on the following allowances which are provided in the SCHADS Award: telephone allowance (cl 20.8 of the SCHADS Award), heat allowance (cl 20.9 of the SCHADS Award) and laundry allowance (cl 20.3 of the SCHADS Award). The Employer submitted that it does not require employees to undertake telephone duty. On the rare occasion the temperature is above 46 degrees in West Gosford, it considers the hourly rates in the Agreement are sufficient to compensate home care workers. The Employer provides clothing for staff so that none of their own clothing is soiled.
The Agreement is silent on the following allowances which are provided in the Aged Care Award: leading hand allowance (cl 15.3 of the Aged Care Award), nauseous work allowance (cl 15.5 of the Aged Care Award), tool allowance (cl 15.6 of the Aged Care Award) and laundry allowance (cl 15.2 of the Aged Care Award). The Employer submitted that it does not require employees to be leading hands, it considers the hourly rates sufficient to compensate home care workers on the occasions they undertake nauseous work, all tools are provided to staff as required to undertake their roles and it provides clothing for staff.
Annual Leave Accrual
Under the Agreement, employees accrue 4 weeks annual leave each year unless employed at the commencement of the Agreement, in which case they receive 5 weeks annual leave. Shiftworkers are also entitled to 5 weeks annual leave under the Agreement. Clause 22.2 of the Nurses Award provides that employees are entitled to 5 weeks annual leave each year and 6 weeks if they are shiftworkers.
The Employer submitted that the Agreement still passes the BOOT with the less favourable annual leave accrual. This is because the lowest remuneration rate is $214.32 per week better off than the Nurses Award and is high enough to compensate for the difference in annual leave accruals. The week’s annual leave amounts to $1,209.16 at the lowest remuneration rate stated. Over the year the employee would receive an additional $11,144.64 when compared to the Nurses Award.
Further Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
The Home Care Level 2 rate when matched against a Home Care Level 2 Pay point 2 rate under the SCHADS Award falls below the Award.
The Agreement covers junior employees at clause 13.9, however, none of the respective Awards cover junior employees. It is unclear how they can be considered better off overall without coverage in the Awards to compare against.
The Agreement covers apprentices at clause 13.8, however, rates of pay have not been provided. It is unclear how they can be considered better off overall without rates of pay to compare against. Further, the Nurses Award does not cover apprentices.
Clause 13.7 of the Agreement appears to provide that Trainees will be employed in accordance with the provisions set out in the Miscellaneous Award 2020. It is unclear how apprentices can be considered better off overall where they are paid the same as the Award.
The Agreement appears to be silent on a span of hours. This would have the potential for employees to work any hours of the day without attracting overtime pay.
Clause 18.3 of the Agreement provides that ordinary hours worked on Sundays will be paid at 175%, inconsistent with clause 26.1 of the SCHADS Award which provides for 200%. The rates do not appear high enough to compensate for employees regularly working Sundays.
Clause 16.4(e) of the Agreement provides that the Employer may withhold payment for cancelled period if they provide the employee with notice of this change by 5pm the day before, and the employee informs them in writing at the time of the notice that they will not work make-up time within the following 3 months. This appears more restrictive than clause 25.5(f)(ii)-(v) of the SCHADS Award. The rates may not be high enough to compensate.
Clause 21.2(b) of the Agreement provides that an employee will be paid overtime rates if they are required to work more than 6 hours without a meal break, from the commencement of the sixth hour until a meal break is taken. This appears inconsistent with clause 27.1(b) of the SCHADS Award. The rates may not be high enough to compensate.
Clause 17.3(b) of the Agreement provides that employees who continue to work after working overtime, without having had their 10-hour break, will be paid at overtime rates until they are released from duty. This appears to be inconsistent with clause 28.3 of the SCHADS Award. The rates may not be high enough to compensate.
10.Clause 21.1 of the Agreement appears to provide for two 10-minute tea breaks for each ordinary shift of 7.6 hours or more, however, the Agreement appears to be silent on rest breaks and meal breaks during overtime in comparison to clause 28.5 of the SCHADS Award. The rates may not be high enough to compensate.
- Clause 24.2(d) of the Agreement appears to provide that in the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the ordinary rate of pay plus any applicable shift or weekend penalties with a minimum payment as for one hour worked. This appears inconsistent with clause 25.7(e) of the SCHADS Award and clause 22.9(g)(i) of the Aged Care Award. Further, the Agreement is silent on the entitlements contained in clause 22.9(j) of the Aged Care Award and clause 25.7(f) of the SCHADS Award.
12.The vehicle/travel and meal allowances at Schedule B Table 2 of the Agreement appear to be slightly less than provided for in the relevant Awards.
13.Clause 21.4 of the Agreement which is in relation to breaks between shifts contains a less favourable entitlement than clause 22.4 of the Aged Care Award, clause 25.4 of the SCHADS Award and clause 13.4 of the Nurses Award.
14.Clause 28.10 of the Agreement which is in relation to overtime during training appears to be less beneficial than clause 19.1 of the Nurses Award.
15.Pay point progression in schedule B of the Agreement appears to be less beneficial than provided for in clause 15.3 of the Nurses Award.
Section 190 Undertakings
The employer provided written undertakings and submissions to address the above BOOT and NES issues. A copy of the undertakings is attached in Schedule C. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above and having considered the submissions of the Employer about annual leave and allowances, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The Australian Nursing and Midwifery Federation – NSW Branch (ANMF) and the Health Services Union NSW/ACT/QLD (HSU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement.
In accordance with s.201(2), I note that the Agreement covers the ANMF and the HSU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2025. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
[1] [2019] FWCFB 7599
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