Child and Youth Services Mutual Limited Pty Ltd T/A Kudos Services

[2022] FWCA 1889

[2022] FWCA 1889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Child and Youth Services Mutual Limited Pty Ltd T/A Kudos Services

(AG2022/1590)

Kudos Services Enterprise Agreement 2020

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 9 JUNE 2022

Application for approval of the Kudos Services Enterprise Agreement 2020

1. An application has been made for approval of an enterprise agreement known as the Kudos Services Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Child and Youth Services Mutual Limited Pty ltd T/A Kudos Services (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 30 May 2022.

1. On 2 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 35 of the Agreement allows for cashing out of annual leave, however, does not state that each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing, as specified by s.94 (3) of the Act.

·   Clause 38.5 of the Agreement states that when taking carer’s leave, the employee must provide the name and relationship of the person requiring care. There is no such requirement included in the NES.

1. Clause 3.4 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of clause 3.4 of the Agreement, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 9 June 2022. The undertaking deals with the following topics:

·   Where a part-time employee performs their ordinary hours of work solely on a Saturday or performs the majority of their ordinary hours of work on a Saturday, the employee will be paid no less than the amount payable under clause 26.1(a) of the Health Professional and Support Services Award 2020 (the Award) for all ordinary hours worked by the employee on the Saturday calculated at the applicable Award base hourly rate of pay for the employee.

·   Where a causal employee performs their ordinary hours of work solely on a Saturday, the employee will be paid no less than the amount payable under clause 26.1(b) of the Award for all ordinary hours worked by the employee on the Saturday calculated at the applicable Award base hourly rate of pay for the employee.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. Whilst the Health Services Union (HSU) made submissions in respect of better off overall test (BOOT), they did not express any view on the undertaking provided by the Applicant.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 8 June 2026.

COMMISSIONER

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