Christadelphian Homes Ltd T/A Christadelphian Aged Care
[2017] FWCA 3590
•5 JULY 2017
| [2017] FWCA 3590 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Christadelphian Homes Ltd T/A Christadelphian Aged Care
(AG2016/8048)
CHRISTADELPHIAN AGED CARE (NSW) ENTERPRISE AGREEMENT 2016
Aged care industry | |
COMMISSIONER JOHNS | SYDNEY, 5 JULY 2017 |
Application for approval of the Christadelphian Aged Care (NSW) Enterprise Agreement 2016 – reasonable steps in explaining the Agreement – was there a substantial change to the Agreement as a result of undertakings provided by the employer – misleading statements.
[1] On 23 December 2016 Christadelphian Homes Ltd T/A Christadelphian Aged Care (applicant) made an application in the Fair Work Commission (Commission) for the approval of the Christadelphian Aged Care (NSW) Enterprise Agreement 2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FWAct). The Agreement is a single-enterprise agreement.
[2] The Agreement was lodged within 14 days after it was made.
[3] On 23 December 2016 the New South Wales Branch of the Australian Nursing and Midwifery Federation (NSW ANMF) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the NSW ANMF answered “Yes”.
[4] On 23 December 2016 the New South Wales Nurses and Midwives’ Association (NSWMA) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the NSWMA answered “Yes”. The NSW ANMF and NSWMA are collectively referred to as the “Nurses’ Unions”.
[5] On 10 January 2017 the Health Services Union (HSU) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the HSU answered “No”.
[6] On 14 February 2017 the HSU provided particulars of its objection to the Agreement’s approval. It stated that it opposed the approval of the Agreement on the basis that the Commission cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement pursuant to s.186(2)(a) of the FW Act, because the applicant did not take the necessary actions to explain the terms of the Agreement to its employees in an appropriate manner when taking into account their particular circumstances.
[7] On 8 February 2017 the Commission wrote to the applicant advising that a number of concerns had been flagged by the Agreements Triage regarding whether or not the Agreement passed the Better Off Overall Test (BOOT). The applicant was directed to submit how the Agreement passed the BOOT or otherwise provide an undertaking to ameliorate the concerns raised by the Commission.
[8] On 17 February 2017 the applicant wrote to the Commission and addressed the issues raised with the BOOT. The applicant provided undertakings in relation to part time employees, casual employees, overtime, and breaks between shifts. The applicant submitted that with the undertakings provided, each of the employees who would be covered by the Agreement would be better off overall than if their employment was instead subject to the applicable underlying Awards.
[9] On 17 March 2017 the HSU filed an amended F18 and raised two further grounds for objecting to the approval of the Agreement. In total, the HSU raised three objections to the Agreement’s approval, as follows:
a) the Commission cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement pursuant to s.186(2)(a) of the FW Act,
b) the undertakings provided by the applicant result in substantial changes to the Agreement and therefore it fails the BOOT pursuant to s.190(b) of the FW Act, and
c) the Applicant made a misleading statement that had the potential to affect the vote of employees covered by the Agreement pursuant to s.188(c) of the FW Act.
[10] Consequently the matter was scheduled for Hearing on 19 April 2017. At the Hearing:
a) Mr B Gee appeared, with permission (pursuant to s.596(2)(a) of the FW Act), for the applicant,
b) Mr L Maroney appeared, with permission (pursuant to s.596(2)(a) of the FW Act), for the HSU, and
c) Ms L Robinson appeared for the Nurses’ Unions.
Submissions and evidence
[11] The Commission, as presently constituted, has had regard to all of the evidence received including submissions made at the hearing and the documents filed prior to the hearing (that were tendered as exhibits). Consequently, in coming to this decision the Commission, as presently constituted, has had regard to the following:
Exhibit no. | Description | Transcript ref. |
N/A | Form F16 – Application for approval of an enterprise agreement submitted by the applicant dated 22 December 2016 | N/A |
N/A | Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement dated 22 December 2016 | N/A |
N/A | Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement submitted by NSW NMF dated 23 December 2016 | N/A |
N/A | Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement submitted by NSWMA dated 23 December 2016 | N/A |
N/A | Amended Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement submitted by HSU dated 17 March 2017 | N/A |
N/A | Undertakings provided by the applicant dated 27 April 2017 | N/A |
N/A | Correspondence from FCB to the Commission dated 17 January 2017 | N/A |
A1 | Correspondence from FCB to the Commission dated 17 February 2017 | PN15 |
A2 | Applicant’s Outline of Submissions dated 8 March 2017 | PN16 |
A3 | Statement of Megan Louise Bowe dated 8 March 2017 | PN17 |
A4 | Statement of Alison Bolton dated 8 March 2017 | PN18 |
A5 | Supplementary Statement of Alison Bolton dated 21 March 2017 | PN19 |
A6 | Statement of Catherine Ruth Strachan dated 8 March 2017 | PN20 |
A7 | Applicant’s Submissions in Reply dated 12 April 2017 | PN21 |
A8 | Supplementary Statement of Catherine Ruth Strachan dated 12 April 2017 | PN24 |
HSU1 | Outline of Submissions filed by the HSU dated 24 March 2017 | PN25 |
HSU2 | Statement of Ben Steltenpool dated 24 March 2017 | PN26 |
NMA1 | Joint Submission of the NSWNMA and ANMF NSW dated 24 March 2017 | PN29 |
[12] But for the objections raised by the HSU, the Commission, as presently constituted, is satisfied that the Agreement meets the statutory requirements prescribed in the FW Act. It remains then for me to consider and determine the objections pressed by the HSU.
s.180(5) & (6) – Did the employer take reasonable steps in explaining the Agreement to its employees
[13] In its F18, the HSU submitted that the Commission cannot be satisfied that, when taking into account the particular circumstances of the applicant’s employees, the Agreement was explained to those employees in an appropriate manner. In its correspondence dated 14 February 2017, the HSU clarified that the “personal circumstances” it referred to was that, it says, 292 employees were from non-English speaking backgrounds and 42 employees were under 21 years of age. It submitted the applicant did not properly consider these issues when explaining the Agreement to its employees.
[14] On 17 January 2017 the applicant wrote to the Commission (17 January Letter) and submitted that the applicant took all reasonable steps to explain the terms of the Agreement and the effect of those terms on its employees and ultimately, the group of employees covered by the Agreement had genuinely agreed to the Agreement. The applicant further detailed the steps taken by it to ensure that its employees understood the Agreement and genuinely agreed to it. The submissions were to the following effect 1:
a) The employer provided all employees who would be covered by the Agreement with a summary of key employee entitlements under the new Agreement. The summary document outlined the variation of any employee entitlements under the current agreement as compared to the proposed Agreement. Copies of the summary document were made available to employees at each of the employers aged care facilities during the access period.
b) Between 7 and 14 December 2016, the applicant conducted 2 employee bargaining sessions at each of the six sites covered by the proposed Agreement. At each of the sessions the terms of the Agreement were explained to employees, as well as specific mention of the variations in entitlements between the current agreement and the new Agreement. Presentations were delivered verbally and in person, accompanied by a slide show. The presentation covered topics such as leave entitlements, dispute resolution, consultation, shift work, overtime and other penalty rates, public holidays and work management.
c) At the conclusion of the sessions a memorandum was issued to all staff addressing frequently asked questions arising during the presentation. Approximately eight employee memorandums were issued, and each of them addressed the terms of the Agreement and the effect of those terms on employees, including but not limited to, dispute resolution, work load management and public holidays.
d) All employees possess a certain level of English language skills which enable them to effectively communicate with the residents in the employer’s aged care facilities, and for that reason, the dual method of explanation (verbally and written) addressed the particular circumstances of the relevant employees. In addition all employees were advised that any additional questions could be raised with their bargaining representatives, their managers or the applicant’s human resources team.
[15] In its submission the applicant noted that:
a) For the purpose of s.180(5) of the FW Act, the employer may satisfy its obligation to explain the terms of the Agreement via explanations given prior to and during the access period, 2
b) “it would be unrealistic to ignore the active bargaining campaigns” by the bargaining representatives for the Agreement such as the unions, 3 and
c) the NSW NMA has not raised any objection to the approval of the Agreement in general terms or in relation to the explanation afforded to employees in particular.
[16] In the 17 January Letter the applicant also addressed the objections raised by the HSU, namely, that the Agreement was not “made”, and the Agreement was not validly signed by representatives of the employees. As a result of the applicant’s correspondence on these issues, the HSU later withdrew both objections.
[17] On 14 February 2017 the HSU confirmed that notwithstanding the 17 January Letter, it maintained its objection to the approval of the Agreement on the grounds that the employer did not comply with s.180(5) and (6) of the FW Act.
[18] In the lead up to the Hearing the applicant filed its Outline of Submissions (Exhibit A2). The applicant's submissions were to be read in conjunction with the 17 January Letter and correspondence sent on 17 February 2017. In those submissions the applicant submitted that the Agreement fulfilled the mandatory requirements of the FW Act including s.180(5) and s.180(6). In relation to those sections the applicant submitted:
“32. From the time of the initial notification to employees regarding the Agreement process on 20 June 2016, up to the time that the approval vote period concluded on 19 December 2016, the Applicant has ensured that all employees have access to:
a. information regarding the Agreement (in its various forms) throughout the bargaining process. For the purpose of section 180(5) of the (FW) Act, the employer may satisfy its obligation to explain the terms of the Agreement via explanations given prior to and during the access period,
b. the written terms of the Agreement (in its finalised form),
c. an explanation of the Agreement and the effect of the terms of the Agreement.
33. Further, the Applicant ensured that all employees proposed to be covered by the Agreement had an opportunity to consult with the Applicant’s representatives and the employee bargaining representatives about the Agreement and any effects that the Agreement may have on their employment.
34. The Applicant has taken the following steps to discuss and explain the effects of the Agreement with employees:
a. On 7 December 2016, the Applicant distributed information packs containing:
i. a series of frequently asked questions (FAQs), with answers, in relation to the proposed Agreement, many of the changed…and/or detailed clauses and information regarding the voting process;
ii. a summary of key employee entitlements under the proposed Agreement;
iii. a document mapping classifications from the Applicant’s existing enterprise agreements to the classifications in the proposed Agreement; and
iv. notification in relation to the voting period, the details of the voting procedure and how employees not present in the workplace could vote on the Agreement.
b. Between 7 December 2016 and 14 December 2016, the Applicant facilitated numerous employee information sessions… In each of the sessions, the terms of the Agreement were explained in an appropriate, comfortable forum, in basic conversational English (taking into consideration young employees and culturally and linguistically diverse employees who may have a preference for verbal as opposed to written communications) and all employees were encouraged to ask questions and provide feedback in relation to the Agreement in an environment “conducive to understanding the Agreement”. All employees were paid for time spent at these meetings.
c. On 15 December 2016, the Applicant distributed a second set of FAQs summarising the most common questions arising from the employee information sessions to employees who would be covered by the proposed Agreement.
d. Throughout the entire process, employees were reminded that if they had questions in relation to the Agreement they were invited and encouraged to discuss their questions and particular circumstances with their Facility Manager, bargaining representative or the Applicant’s Human Resources Manager. All employees were provided with the HR Manager’s mobile phone number for this purpose.
35. All employees engaged and proposed the be covered by the Agreement have attained at least a level of conversational English (as this is a requirement of their roles). Further, no employee requested that the information be translated to a language other than English. The Applicant therefore submits that the terms were explained to employees in an appropriate manner having regard to the circumstances of all employees and there was no requirement to present the information using any different method or in different format.
36. Further, the Applicant submits that there is no evidence before the Commission of any complaint by any employee who would be covered by the Agreement that they did not have an opportunity to ask questions in relation to the Agreement. There is also no evidence before the Commission of any complaint by an employee that they did not have an opportunity to attend and participate in meetings for the purpose of having the Agreement explained. On this basis, and for the reasons outlined in paragraphs 30 to 35 (inclusive) above, the Applicant submits that it has satisfied the requirements of sections 180(5) and (6) of the (FW) Act.”
[19] At the Hearing Ms Megan Bowe, a solicitor and Partner at FCB Lawyers gave evidence and was cross examined by Mr Maroney. Ms Bowe was appointed as the bargaining representative for the applicant in bargaining for the Agreement. Ms Bowe attended 9 Bargaining meetings for the purpose of facilitating bargaining for the Agreement. Under cross examination, Ms Bowe gave evidence to the following effect:
a) she was aware of a number of employees at the Courtlands facility who were from a non-English speaking background, 4
b) she spoke with employees at multiple facilities who were from a non-English speaking background, 5
c) she explained to employees that in the existing agreements there is a workload management clause, and that as a result of discussions with the HSU and NSW NMA, it had been revealed that the workload management clause was not working as well as it could have been, and that the process was generally not followed. She explained to employees that for that reason, the workload management clause will not be included into the new Agreement, but instead will be dealt with in CQI meetings, 6
d) she gave all presentations in English, 7
e) she did not consider translating any of the documents produced in her role as a bargaining representative, 8 and
f) she did not arrange for bilingual management representatives to be present as part of her role as a bargaining representative. 9
[20] In her statement Ms Bowe gave evidence to the following effect:
g) in delivering her presentations she avoided the use of legal jargon where possible and instead used plain English in a conversational style, 10
h) she would remind employees present at the presentations that it was open to them to ask questions, or they could ask questions privately if they felt uncomfortable doing so in the group sessions, 11
i) on 7 December 2016 she attended the Casa Mia site and facilitated 2 employee information sessions. At those sessions she answered questions relating to the dispute resolution procedure, advising that the removal of the arbitration clause does not mean employees cannot raise issues with their manager, human resources or their union representative, 12
j) on 7 December 2016 she attended the Southaven site and facilitated 2 employee information sessions. At those sessions she answered questions relating to the payment of uniform allowance and whether or not certain employees would be covered by the new Agreement, 13
k) on 8 December 2016 she attended the Courtlands site and facilitated 2 employee information sessions. Employees of this site are covered by the relevant Modern Award, hence Ms Bowe took the time to explain to employees the difference between the implementation of an agreement as opposed to an Award. At these sessions she answered questions relating to recognition of service with their previous employer and the preservation of their existing rates of pay, 14
l) on 9 December 2016 she attended the Ashburn House site and facilitated 2 employee information sessions. At those sessions she answered questions relating to redundancy payments and long service leave. She explained that the entitlement to redundancy pay in the new Agreement is the same as it is in the existing agreement. Further, she explained that their entitlement to long service leave is protected by law and cannot be taken away from employees. However, she also clarified that there is one change to how long service leave will be paid if employees left Christadelphian and went to work somewhere else, 15
m) on 12 December 2016 she attended the Chamberlain site and facilitated 2 employee information sessions. At those sessions she answered questions relating to the payment of long service leave and also directed a group of employees to address their questions regarding classifications to Alison Bolton. She observed those employees engaging in discussions with Ms Bolton, however did not hear the content of what was discussed, 16 and
n) on 13 December 2016 she attended the Ridgeview site and facilitated 2 employee information sessions. At those sessions she answered questions relating to the removal of the additional picnic day from the new Agreement, the removal of the option to take time in lieu instead of receiving public holiday penalty rates and the change to the payment of pro-rata long service leave. 17
[21] The applicant also adduced evidence from Ms Alison Bolton, the applicant’s Human Resources Manager. During the proceedings, Ms Bolton gave the following evidence:
a) the recruitment process for every employee requires them to submit a resume in English and complete forms which are also in English, 18
b) it is not a part of an employee’s regular duty to be involved in enterprise bargaining, 19
c) it would have been unusual for employees to see documents relating to enterprise agreements, 20
d) it was never a concern that employees from a non-English speaking background would not understand the Agreement, 21
e) on 5 December 2016 employees were informed that translators could be provided if an employee requested the service. 22 Ms Bolton did not look into the cost of organising a translator. She did not contact any translation service. She was not certain if she was able secure a translating service for 7 December 2016. No active steps were made for bilingual employees to explain the Agreement,23 and
f) she is not aware of any employee having asked for any documents to be translated, or requesting a translator be present at the information sessions. 24
[22] Further still, the applicant called Ms Catherine Strachan, who is employed by the applicant as a Resident Services Officer and Volunteer and Pastoral Care Coordinator. During the proceedings, Ms Strachan gave evidence that she attended the information session at Casa Mia and she understood all the answers provided by Ms Bowe. Further, she stated that English is her first language, and over fifty percent of the applicant’s employees are from a non-English speaking background. 25
[23] The HSU submitted that the applicant failed to comply with the pre-approval steps contained in s.180(5) and 180(6) of the FW Act. The HSU submitted the following in support of its objection:
“9. The Explanatory Memorandum to the Fair Work Bill 2008 provides guidance on what is contemplated by the requirement to take “into account the particular circumstances and needs of the relevant employees”:
742. Subclause 180(6) provides examples of the kinds of employees whose circumstances and needs the employer must take into account when explaining the terms of the agreement and the effect of those terms.
The examples are:
• employees from culturally and linguistically diverse backgrounds - for these employees, an employer may need to use an interpreter or translated materials to explain the terms of the agreement;
• young employees - for these employees, an employer may need to explain the terms of an agreement to both the employee and to their parent or guardian…
10. The Applicant bears the burden of proof in relation to this application before the Commission. It must satisfy the Commission that it has complied with the pre- approval steps contained at s.180 of the FW Act. The HSU submits that the Applicant has failed to discharge this onus.
11. There is no dispute that the Applicant has a workforce made up of many employees from culturally and linguistically diverse backgrounds. So much is clear from the Applicant’s F17, the evidence given by the witnesses of the Applicant, and the evidence given by Steltenpool.
12. The contention of the Applicant is that the explanation of the terms of the Agreement to employees from “culturally and linguistically diverse backgrounds” was dealt with on the basis that employees are expected to have at least conversational English as a precursor to their employment. The highest that the evidence gets for the Applicant in terms of demonstrating that s.180(5)(b) has been satisfied is that employees were given information about the terms of the Agreement in English and were told that they could ask questions.
13. The mere fact that some employees from a non-English speaking background did choose to ask questions does not demonstrate that the explanation of the terms of the Agreement to those covered by the Agreement was appropriate.
14. There is no evidence that the Applicant considered options about explaining the terms of the Agreement in different languages, be that by nominating a point of contact for each distinct cultural or linguistic group; or by translating the document into the main languages spoken by the different linguistic groups in the workplace. Such steps were accepted as satisfying the requirement of s.180(5) by Bull DP in Application by Transit (NSW) Services Pty Ltd [2016] FWC 2742 at [40] – [43]. Further, there is no evidence that the Applicant even considered whether or not it had to determine the manner in which it presented the terms of the Agreement to its employees. This would be a reasonable step as contemplated by s.180(5) on the HSU’s submission.
15. Given the size of the Applicant’s workforce from a non-English speaking background (292 of 910 according to its F17), it is reasonable to expect it to take further steps to ensure that the terms of the Agreement were explained in an appropriate manner. Further, as the scope of the Agreement changed from previous agreements covering the Applicant’s workforce, and the removal of entitlements took place (as well as the addition of some), the importance of explaining the terms of the Agreement, as well as the steps that would be “reasonable”, were more onerous as employees had to understand the changed industrial landscape they were now to vote on. The HSU submits that this is different to a situation where a new agreement was simply a roll-over of a past agreement.”
[24] In support of its submissions the HSU called evidence from Mr Ben Steltenpool, an Organiser at the HSU. In Mr Steltenpool’s statement, he makes a number of assertions regarding events which took place during the bargaining process, the nationality of employees and the level of understanding employees had of the Agreement. Mr Steltenpool also provided a spread sheet (Spread sheet) which listed 24 employees’ answers to questions asked by Mr Steltenpool. In his statement Mr Steltenpool stated that only 1 of the 24 employees was willing to appear before the Commission to provide evidence that they did not understand the Agreement. This person was not called as a witness, as such, no employee of the applicant appeared before the Commission to give evidence that they did not understand the Agreement.
[25] The following evidence was adduced in cross examination of Mr Steltenpool:
a) he was not a part of the bargaining process for the Agreement, 26
b) he had concerns regarding the awareness and understanding that employees had of the Agreement and the bargaining process, however was unsure if the issue was ever raised with the employer, 27
c) he raised his concerns with the bargaining officer (Mr Toby Warnes), however this was not included in his statement, 28
d) the Spread sheet was created on 21 March 2017, around 3 months after the Agreement was voted up, 29
e) he did not attend any of the information sessions conducted by the employer, 30
f) the HSU documents relating to bargaining of the Agreement that were translated into other languages were never distributed to employees at any of the applicant’s sites, 31
g) Mr Steltenpool corrected the statement he makes in paragraph 7 of his statement that “Many of Christadelphian employees have very limited English”, this was changed to “Many of Christadelphian employees who I have spoken with have very limited English”. 32 Mr Steltenpool could not provide an estimate of the number of employees he had spoken with,33
h) he conceded that he had no proper basis to conclude that the employees he spoke to had a very limited understanding of English, 34
i) Mr Steltenpool conceded that he could not have conclusively known the nationality of employees he had spoken to at the applicant’s sites (which is contradictory to paragraph 12 in his statement). Further he admits he did not ask any of the employees what nationality they were. 35 The views he expressed regarding the nationality of the employees were based on their accents and “looks”,36
j) he conceded that it was possible that employees did understand what he was talking about when he spoke to them, but they chose not to engage with him. He did not ask questions to confirm that they understood him, 37
k) in paragraphs 18 and 19 of his statement he states “Most workers that I spoke to had no idea what was in the Agreement and no idea where the Agreement process was up to…when I tried to explain the situation to a number of workers, I could tell that there was a common lack of understanding of what was going on with the approval process.”. When asked “there is no basis in your evidence for forming (that) view… other than your base opinion. Do you agree with that?” Mr Steltenpool answered “That’s incorrect, but there is no evidence in my statement or attached to confirm that, so, no”, 38
l) he conceded that there is no evidence which suggests that any HSU member or other person made a complaint about not understanding the Agreement, 39 and
m) he accepted that day to day business communications at the sites he visited were all conducted in English. 40
[26] Mr Steltenpool’s evidence made clear the fact that many of his statements were mere assumptions, or otherwise inaccurate. For this reason, little weight has been placed on his evidence.
[27] In final submissions the Nurses’ Unions submitted that, at no stage did they issue any notices to employees in another language. 41 Further, the Nurses’ Unions did not at any stage make a request to the applicant to provide its information and documents in other languages.42 The HSU conceded they did not make that request either.43
[28] In his final submissions, Mr Gee submitted that there is no evidence which demonstrates an absence in the employees’ understanding of the Agreement. Mr Gee noted, that the agreement summaries provided to employees were prepared by the unions and the applicant, the summaries set out difference between the existing and new Agreement and that employees were able to contact human resources to seek clarification on any point. 44
[29] In his final submissions, Mr Maroney stated that the Commission specifically sets aside culturally and linguistically diverse backgrounds as requiring special treatment. It was put to Mr Maroney, that in circumstances where the HSU believed it was necessary for the applicant to provide some form of translation of documents and presentations, why did the HSU not raise it with the applicant? In answer to this, he submitted that the obligation to take into account the cultural and linguistic backgrounds of employees falls on the employer. Further, he submitted that in order for the employer to satisfy the Commission that all reasonable steps were taken, it would have had to include making enquiries about the employees from a non-English speaking background, he says, that the statement made in the email dated 5 December 2016, that a translator may be made available does not satisfy the term “all reasonable steps”.
[30] In its reply submissions dated 12 April 2017, the applicant submitted that there is no evidence before the Commission that any employee did not understand the terms of the Agreement as a consequence of the employee being from a “culturally or linguistically diverse” background.
[31] The obligation imposed upon an employer under s.180(5)(a) is to take all reasonable steps to ensure the terms of the Agreement and the effect of those terms were explained. In this matter, there is no evidence to suggest they were not. The applicant held 2 information sessions across several sites and provided a comprehensive explanation of the differing terms of the existing agreement and the new Agreement.
[32] The applicant referred to the Full Bench Decision McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2010] FWAFB 4602 (McDonald’s). Specifically paragraphs [34]-[35] which state:
“[34] The notion in this extract is that unless there is evidence of a differentiated method of explaining the terms of the agreement to different groups of employees the employer cannot be said to have taken reasonable steps to ensure that the explanation is provided in a reasonable manner. We reject this approach. If a method of explanation is adequate for all groups of employees there is no need that it be differentiated. There is no suggestion in any of the material or the comments of the Commissioner that any of the means of communication, or the communications as a whole, were in any way deficient. We are of the view that the Commissioner erred in her approach to this requirement.
[35] Reviewing the evidence for ourselves we note that the employers held meetings to explain the agreement. The employers used a variety of meeting venues to encourage attendance including the hiring of movie theatres. Agreement summaries were prepared by the SDA in consultation with McDonald’s. Those summaries set out the differences between the terms of the Agreement and current terms and conditions. Employees were given hard copies of the summaries or given access to electronic versions and copies on notice boards. Additional meetings were conducted by the union at which explanations were given and questions could be asked. Employees were also able to contact the People Resources Department in each State to seek clarification of any matter.”
[33] The HSU argued that the McDonald’s decision cannot be relied upon because in that decision the issue in dispute was in regards to agreement summaries prepared by the bargaining representative, which the HSU says, was in an advantageous position regarding what was required to properly explain the agreement to employees, whilst in this matter, the HSU submits that it did not have that luxury.
[34] Further, the applicant relied upon the decision in Transit (NSW) Services Pty Ltd T/A Transit Systems [2016] FWC 2742 (Transit Systems), in which Deputy President stated:
“[42] There was no evidence produced that any employee did not understand the terms of the Agreement, only that it was not explained by Transit in a language other than in English to employees. All employees were invited to attend information sessions to ask any questions about the understanding of the Agreement. At some of the information sessions TWU officials attended and spoke to employees. The evidence indicated that the TWU only ever spoke in English or produced documentation in English to the workforce when discussing the Agreement.”
[35] I adopt the approach of the Deputy President. There is no doubt that the applicant employs a significant number of employees from a culturally and linguistically diverse background. Section180(6) of the FW Act states that cultural and linguistic diversity is an “example of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with [s.180(5)]”. There can be no doubt the applicant recognised the diversity amongst its employees and went to great lengths of organising information sessions, providing the FAQs sheets, providing the agreement summaries, answering questions, offering contacts for any questions at any time, and offering the services of a translator. While it was conceded by Ms Bolton that other than simply advising employees that a translator can be provided on request, no further action was taken. However, offering the service was the applicant’s way of taking into account the possibility that an employee may not have an understanding of the Agreement because of their cultural or linguistic diversity. Not a single employee requested the services of a translator, no employee complained to the applicant that they lacked understanding of the Agreement, no complaint of the same was made to either the HSU or the Nurses’ Unions.
[36] For all of these reasons and in circumstances, where the HSU has not been able to provide any evidence or a “warm body” to testify in the Commission that there was a lack of understanding of the Agreement, the Commission, as presently constituted, is satisfied that the applicant satisfied the requirements under s.180(5) and s.180(6) of the FW Act.
Do the applicant’s undertakings result in a substantial change to the Agreement – s.190(3)(b)
[37] The HSU submitted that the undertakings provided by the applicant result in substantial change to the Agreement, which is prohibited by s.190(3)(b) of the FW Act. The applicant rejects this submission.
[38] The HSU submitted that:
“16. The HSU’s objections in relation to the undertakings offered by the Applicant are based on two limbs.
17. First, the undertakings result in “substantial changes to the agreement” which is
prohibited by s.190(3)(b).
18. Second, that “Undertaking 5” relating to casual employees covered by the Aged Care Classifications in the Agreement, does not rectify the concerns of the Commission about the deprivation of overtime to casual employees.
The undertakings result in “ substantial changes to the agreement” which is prohibited by s.190(3)(b)
19. The undertakings offered by the Applicant to rectify the concerns of the Commission result in substantial changes to the Agreement and therefore cannot be accepted by reason of s.190(3)(b). In such a situation, the Commission must conduct the better off overall test in the absence of such undertakings.
20. The Full Bench of the Commission considered s.190(3)(b) in AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833 at [34]:
“The statutory scheme therefore requires the application by the Commission of the provisions of ss.186-190 to an enterprise agreement that has been already bargained for, approved by employees and “made” under Div.3 and Subdiv.A of Div.4 of Part 2-4. That is to say, in relation to non-greenfields enterprise agreements, the Commission is discharging its functions by reference to an agreement which has already been developed and finalised by a process of collective bargaining at the enterprise level. The Commission’s approval functions are not intended to be a process by which an employer, in a process of dialogue with the Commission, can seek to develop the agreement further so that it may eventually satisfy the approval requirements in ss.186 and 187. The undertaking facility in s.190 provides an opportunity to an employer to proffer an undertaking to address any concern which the Commission may have concerning the satisfaction of the approval requirements in ss.186 and 187. Because any such undertaking may not result in substantial changes to the agreement, the opportunity provided is necessarily limited in nature and cannot involve a wholesale reshaping of the agreement which has already been made.”
21. That case was recently cited by Commissioner Williams in Furnace Solutions Pty Ltd [2017] FWC 1444 where the Commissioner made the following comments about an undertaking offered by the applicant in that matter:
“The second undertaking given by the Applicant is designed to ensure that the Agreement, when read in conjunction with the undertaking, satisfies the BOOT and as such there is no barrier to the Agreement being approved. The undertaking in this matter however is not limited to minor changes which simply clarify terms of the Agreement. Instead the undertaking includes significant changes to the wage rates in the Agreement, changes to the wording of multiple clauses in the Agreement, the inclusion of new provisions in the Agreement and the calling up of allowances as they operate in the Award to now be entitlements under the Agreement which had previously been silent on these matters.”
22. Accordingly, any undertakings made by the Applicant should not involve the “reshaping” of the Agreement, should not involve “changes to the wording” of the Agreement’s terms, or “the inclusion of new provisions in the Agreement”.
23. The HSU only seeks to make submissions on the undertakings made by the Applicant that affect its members and makes no submissions on undertakings that only affect the members of the NSW Nurses and Midwives Association.
Undertaking 1
24. Undertaking 1 involves the addition of a new clause into the Agreement. This undertaking does not clarify an existing clause of the Agreement, it is the creation of new rights separate to the Agreement that was “made” on 19 December 2016.
25. The HSU submits that this undertaking must be rejected pursuant to s.190(3)(b)
of the Act as it substantially changes the Agreement.
Undertaking 2
26. The HSU repeats its submission in relation to Undertaking 1 for Undertaking 2.
Undertaking 6
27. Undertaking 6 is a significant change to an important condition in the Agreement.
The parties at the bargaining table discussed this issue specifically and the position was agreed on the basis of other concessions by the employer. This clause was put to the Applicant’s employees to vote upon. The change to this clause is a “substantial change” to the Agreement.
“Undertaking 5 ” relating to casual employees covered by the Aged Care Classifications in the Agreement, does not rectify the concerns of the Commission about the deprivation of overtime to casual employees
28. If the Commission is minded to accept Undertaking 5 by the Applicant, the HSU submits that it does not rectify the concerns of the Commission. Under cl. 25(b)(i) the Aged Care Award 2010 (Award), a casual employee is entitled to time and a half for the first 2 hours after they exceed 38 hours per week or 76 hours per fortnight. Alternatively, a casual employee under the Award is entitled to the same after 10 hours work on any single day under cl. 25(b)(ii).
29. Under the Agreement, a casual employee (apart from casual nursing assistants) is not entitled to overtime in any circumstances. The Applicant’s undertaking seeks to limit the disadvantage to 10 hours over a 4-week period. Such an undertaking could leave an employee up to 5 hours’ worth of pay per 4 weeks worse off, and
65 hours’ worth of pay worse off per year. Depending on the amount of hours worked by a casual employee, considering a casual’s often sporadic roster, this disadvantage could result in a casual being worse off than if they were under the Award.
30. A further issue is the words “unless by mutual agreement” in Undertaking 5. An employee is unable to “mutually agree” to be worse off under the Agreement. Under the undertaking given by the Applicant, if a casual employee agreed to work, say, 40 hours’ overtime in a 4 week period, then they could. Such a situation should leave the Commission with no doubt that this clause causes the Agreement to fail the BOOT.
31. The HSU submits that cl. 27.1 of the Agreement results in casual employees being not better off under the Agreement than the Award.”
[39] In addition to the applicant’s submissions in reply, Mr Gee made the following oral submissions:
“MR GEE: I will not take you to those in any great detail other than to say that at paragraph 11 we have referenced three decisions of this Commission as exemplar decisions. The first two are by Saunders C where the Commissioner saw fit to approve an agreement with undertakings where the undertakings increased rates of pay, deleted parts of clauses, all changes that are of a similar nature to what is proposed in this agreement. We do not stand out in any way by comparison to those two decisions. In the third case, Croft Taxi Trucks Agreement, the decision of Bartels DP, where there were even more substantive changes, an increase to rates, a change in the minimum start. That didn't arise in substantial changes. The agreement was approved.
I have omitted from that list and I have shared with my friend one and one only further example of that type of undertaking. It is in the matter of Bupa Care Services ANMF and HSU Enterprise Agreement 2009, 2010 FWAA 3238, if I may.
I have handed the Commission two decisions. The first one is the appeal in Bupa Care Services Pty Ltd. It is reasonably lengthy, but insofar as that appeal decision went to the Bupa Care Services Agreement, there was an earlier decision of Smith C who declined to approve that enterprise agreement. I went on appeal to a Full Bench of Fair Work Australia with Acton SDP presiding. The appeal was upheld on the basis that procedural fairness had been denied to the applicant, Bupa Care Services, to put on an undertaking.
The matter was then remitted to Acton SDP and that is the second and smaller of the decisions that I have handed up. In that decision, her Honour accepted an undertaking which had the effect of omitting an entire clause from the enterprise agreement and formed a view that on the basis that there was no financial detriment and there was no substantial change with the omission of an entire clause, the undertaking could be accepted and the agreement was approved.
We simply say that those four decisions are examples of circumstances where the Commission has readily accepted undertakings of a similar nature and impact as the undertakings sought to be given in this matter without controversy. I otherwise rely on our written submissions.
…
The union has referred to the AKN Pty Ltd t/a Aitkin Crane Services Agreement at paragraph 20 of its submissions. What must be understood is that the nature of the agreement before the Commission in that matter was substantially different. By way of an example, one of the clauses that concerned the Commission in that matter was a clause that allowed 28 consecutive days of 12-hour shifts to be rostered and worked. And that was not capable of being fixed by way of an undertaking to the Commission's satisfaction.
There were other concerns, but that gives the flavour of the concerns held by the Full Bench in that matter that just do not arise here. In the Furness decision which is referred to by the HSU at paragraph 21, it involved a dispute about whether 11 separate undertakings and then a further nine separate undertakings could remedy concerns raised by the union. I am not going to traverse those in any detail other than to say that those matters were much broader and deeper than what is proposed in this matter. It is evident on the fact of the Commission.
But that decision by Williams C is not in any way supportive of the proposition that the union puts in paragraph 22. In no way can Furness be relied on to suggest that the inclusion of new provisions in the agreement will result in substantial changes. It is simply not an accurate statement of either that decision or the other decisions that have been referred to.
I think perhaps a better analogy is to look at Gostencnik DP in the Kore case which we have referred to. That is a matter where the Deputy President decided against approving an agreement with undertakings. But at paragraphs 30 to 32, his Honour goes through the thinking process about considering undertakings and at paragraph 32, he says, and I quote:
Clearly the undertakings are designed to ensure that the Agreement, when read with the undertakings, would pass the better off overall test. However, when one examines the proposed undertakings in their entirety it is clear that, taken as a whole, the undertakings result in substantial changes to the Agreement.
I will close the quote there, but that is the analysis. The analysis is to look at the proposed undertakings in the context of the entire agreement as a whole and then decide if they result in substantial change or not. Our clear submission the conclusion in this case is that those undertakings do not amount to a substantial change. They do not amount to a financial detriment to any employee covered by the agreement. The persons to be covered by the agreement have had an opportunity to consider those and we have heard from their bargaining representatives and we say there is a proper jurisdictional basis to accept those undertakings and approve the agreement inclusive of those undertakings.” 45
[40] In determining if the undertakings caused a substantial change to the Agreement, I will consider them individually and collectively. The HSU only raised concerns with undertakings relating to its members, however for completeness I consider each below:
Undertaking 1
[41] The HSU submitted that undertaking 1 involved the addition of a new clause which creates a new right separate to the Agreement when it was agreed to. The applicant submitted that the undertaking does no more than clarify the manner in which contracted hours will be mutually agreed between the employer and employee, and does not result in a substantial change to the Agreement. I accept the applicant’s submission. The undertaking does no more than provide clarity to the term “contract hours”, which is subject of an existing clause of the Agreement. There is no financial detriment or substantial change eventuating from the undertaking
Undertaking 2
[42] With respect to undertaking 2, the HSU repeated its submission in undertaking 1. The applicant submitted that the undertaking constitutes a minimal change to the Agreement in that it provides for an entitlement to overtime for casual Health Professional and Clinical Nurse employees already contemplated in the Agreement and does not result in a substantial change to the Agreement. I accept the applicant’s submissions. In Tomato Exchange Unit Trust [2017] FWC 1170 at [31] – [35], Commissioner Roe invited the employer to make an undertaking with respect to casuals’ overtime, and concluded that if such an undertaking was provided it would not result in a substantial change to the Agreement. I adopt this approach and find that there is no substantial change to the Agreement as a result of the undertaking.
Undertaking 3
[43] The HSU made no direct written submission in respect to undertaking 3. Nonetheless, the applicant submitted that the undertaking does no more than clarify the operation of the clause by including a reference to the proposed clause 26.2(b) as provided for under the proposed undertaking 2. I accept the applicant’s submission. There is no financial detriment or substantial change eventuating from the undertaking.
Undertaking 4
[44] The same conclusion reached in undertaking 3 applies to undertaking 4.
Undertaking 5
[45] The HSU submitted that if the Commission is minded to accept the undertaking, it would not rectify the concerns raised by the Commission as the entitlements in the Agreement do not meet the entitlements provided in the relevant Modern Award. The HSU’s submission in plainer sense was that the undertaking did not satisfy the BOOT. The applicant submitted that given the higher rates of pay paid by the applicant to non-nursing casual employees and the infrequent and irregular nature of overtime work by those employees an undertaking is not necessary, however the undertaking was provided to clarify the working arrangements of casual non-nursing employees at the time the Agreement was approved.
[46] It is the evidence of Ms Bolton that “…in the last six months only 10 casual employees in non-nursing classifications have been required to work overtime and of these 10, 8 have only worked overtime on one occasion. Further, 9 of the 10 worked less than 5 hours overtime….” Noting that when the Agreement was voted “YES” there was no limit imposed upon the amount of overtimes hours a non-nursing casual employee could work, and the undertaking combined with the higher pay rates and infrequent overtimes hours worked, I am satisfied that overall those affected employees would be better off under the provisions of the Agreement than they would be under the relevant Modern Award. There is no financial detriment or substantial change eventuating from the undertaking.
Undertaking 6
[47] The HSU submitted that this undertaking is a significant change to an important condition of the Agreement and it amounts to a substantial change to the Agreement. The applicant submitted that the undertaking does no more than provide a minimal alteration to the Agreement to provide for a 10 hour break (as prescribed by the relevant Modern Award) and does not result in a substantial change to the Agreement. I accept the applicant’s submission. In ALDI Foods Pty Ltd [2017] FWC 534 at [35] – [41], Deputy President Bull determined that an undertaking provided by the employer relating to Rest Breaks did not result in a substantial change to the Agreement. I adopt this approach and find that there is no financial detriment or substantial change eventuating from the undertaking.
[48] Considering all that has been put and the factual context of the matter before me, I am satisfied that the undertakings provided by the applicant, when considered individually, and then collectively, are alterations of minimal effect, or are otherwise, made for the purposes of clarification. The nature of the undertakings sought by the applicant are regularly granted by the Commission, especially in instances where the number of undertakings are relatively low. The undertakings provided by the applicant above are central to addressing the concerns raised by the Commission in relation to the BOOT. Consequently, the Commission, as presently constituted, is satisfied that by accepting the undertakings the BOOT is met, and that, the undertakings do not result in a substantial change to the Agreement, nor cause any financial detriment to employees as per s.190(3) of the FW Act.
Did the employer make a misleading statement – s.188(c)
[49] The HSU submitted that statements made by the applicant, prior to the Agreement being put to the vote, are misleading and provide a reasonable ground for believing that the Agreement was not genuinely agreed to under s.188(c).
[50] The HSU submitted that:
“33. When the Applicant released a bulletin to employees just prior to the ballot, it stated that:
If staff vote “no” then:
• Christadelphian does not need to continue bargaining or offer a new enterprise agreement…
…
If there is a “no” vote, pay rates would stay at the current rates indefinitely.
34. In this situation, where the Applicant’s staff had not received a pay rise since October 2015, making a statement stating that future bargaining is at risk and that pay rates would not move is a statement designed to influence an employee to vote “YES” for the Agreement. Such a tactic is legitimate so long as it is supported in fact. These statements are not.
35. Under s.228 of the Act, after the notification time for an agreement, the bargaining representatives to a proposed enterprise agreement must meet the “good faith bargaining requirements”. Relevant to this matter, the Applicant (and other bargaining representatives) must recognise and bargain with other bargaining representatives for the agreement.
36. Further, the Applicant also has the obligation of “attending, and participating in, meetings at reasonable times”. The Commission has found that failing to meet even where the employer holds a reasonable belief that bargaining is not currently on foot can constitute of breach of s.228. This obligation continues until a bargaining period is terminated.
37. The consequence of the operation of s.228(a) and (f) is that if the Agreement was to be not approved, bargaining does not terminate, it continues until Agreement is reached or the parties agree to walk away. This concept was explored in some length by Flick J in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764: see [30]-[52]. Importantly, Flick J cited the following passage from the Explanatory Memorandum to the Fair Work Bill 2008:
r.174. Where bargaining representatives cannot agree regarding agreement content, they will be able to jointly walk away (in which case the workplace arrangements already in place would remain in force), take protected industrial action or jointly seek FWA’s assistance in determining a settlement. ...
38. The HSU submits that once the “notification time”, as defined by s.173 of the Act, has been triggered, in this case by an initiation of bargaining, the employer cannot simply refuse to bargain and stop. If it attempts to do so, then the bargaining representatives can take protected industrial action, or apply for a bargaining order under s.229, in order to force the employer back to the table. This submission corresponds with the observations of Flick J and r.174 of the Explanatory Memorandum. If an employer stops bargaining and the bargaining representatives agree, then both parties walk away. If the bargaining representative does not accept or agree to cease bargaining, then it can seek various remedies to ensure the bargaining continues. It is not as simple as unilaterally ceasing bargaining.
39. By stating to employees that, in effect, all hope was lost of a new agreement and pay rise if the ballot came up “NO”, the integrity of the vote has to be called into question. Given the closeness of the vote, a misleading statement such as this needs only have misled a relatively small number of employees to affect the genuine nature of the Agreement.
40. If the employees were to vote “NO” for the Agreement, bargaining would have continued. The statements made by the Applicant to the contrary are patently false and misleading.”
(Footnotes omitted)
[51] In addition to the applicant’s submissions in reply, Mr Gee made the following final oral submissions, rejecting the proposition that any statement made by the applicant was misleading:
“Mr GEE: … No objection to the statement was made at the time it was issued on 7 December. We are talking about the document annexure H to exhibit A4.
There is no evidence that any person, whether a bargaining representative or employee, made a complaint about it or was confused by it or asked for it to be clarified. There is no evidence that the union put forward any information at the time that suggested the information was misleading. It arose for the first time almost three months to the day after the vote was held.
The assertion is also somewhat misleading if one has regard to the entirety of annexure H. I will not take you to the entirety of H, but if one reads - annexure H is the email and then a document which is titled: "Enterprise Agreement 2016 Update 7 December 2016." On the fourth page of that document, from the middle of the page downwards, there is a heading: "What happens if we vote 'no'?" If one reads to the end, one will see that there is absolutely nothing misleading in the information that is given and what is given is a true and correct reflection of the bargaining rules and the position of the respective parties in enterprise bargaining.
It is somewhat misleading for the Health Services Union to extract excerpts of that content absent its context and suggest that those excerpts are misleading.” 46
[52] Both parties relied upon the Decision in Endeavour Coal v APESMA [2012] FCA 764 (Endeavour), in which Flick J stated:
“48. It may nevertheless be accepted that “good faith bargaining” may fail. As the
Regulatory Analysis set forth in the Explanatory Memorandum to the Fair Work
Bill 2008 (Cth) states:
“r.174. Where bargaining representatives cannot agree regarding agreement content, they will be able to jointly walk away (in which case the workplace arrangements already in place would remain in force), take protected industrial action or jointly seek FWA’s assistance in determining a settlement. …
The requirements set forth in s 228(1), accordingly, do not require “bargaining”
to proceed until an “enterprise agreement” is ultimately reached. The fact that
s 228(2) expressly recognises that agreement on terms is not required expressly
contemplates the possibility that bargaining may cease without agreement being
reached…”
[53] The applicant correctly submitted that s.228(1) of the FW Act does not require bargaining to proceed until an enterprise agreement is ultimately reached, and that s.228(2) of the FW Act expressly contemplates the possibility that bargaining may cease without an agreement being reached. It is the HSU’s argument that the employer made statements to employees during the bargaining process that if they voted “NO”, certain entitlements and advantages offered in the new Agreement will be lost indefinitely. The HSU says a statement of that effect is an accepted method used by employers to entice a “YES” vote only in circumstances where the statement is of a factual nature. However, the HSU submitted that in this instance, the statements made by the applicant were not factual and therefore misleading.
[54] The HSU submitted that the following statements were not factual and were designed to influence employees to vote “YES”:
a) “Christadelphian does not need to continue bargaining or offer a new enterprise agreement”. It is put plainly in the Endeavour decision that an employer is not required to continue bargaining to proceed until an enterprise agreement is ultimately reached. This statement made by the applicant is factual. Where the HSU accepts that an employer is permitted to make statements of this nature on the basis that they are factual, it necessarily follows that the statement is not misleading in nature. It is specified in the Endeavour decision that if an employer opts to cease bargaining, the bargaining representative may seek to take protected industrial action, this was an option which the HSU failed to consider implementing while the Agreement was subject to bargaining. Failing to utilise that option does not beget the option of arguing that the employer’s statement was misleading.
b) “If there is a ‘no’ vote, pay rates would stay at the current rates indefinitely”. The applicant submitted that the HSU submissions misrepresented the information presented to the employees, as the statement above was followed by:
“Employees will only receive an increase if their current base rate of pay falls below the Modern Award rate, in which case the Higher Modern Award rate would apply automatically. However, in many cases, the Modern Award rate is much lower than what we pay now, and what we are offering, which means most employees will not get any increase.”
If the paragraph above did not follow the statement claimed to be misleading, then it could be argued that the statement was not factual and as a result misleading. However, the applicant has simply advised employees that in “many cases” the Award rate is lower than what they currently pay, or what the new Agreement proposes to pay them, and for that reason employees would stay at their current rates “indefinitely”. The use of the word “indefinitely” is questionable as it seeks to propagate a degree of apprehension towards an employees’ future prospects if they vote “NO”. While the statement could be categorised as dramatic, it could not be deemed misleading because in the context where the current pay rates of employees are higher than the Modern Award, the statement is factual.
[55] Consequently, the Commission, as presently constituted, is not satisfied that the statements made by the applicant to employees were misleading, and as a result the Agreement was genuinely agreed to pursuant to s.188(c) of the FW Act.
HSU Objections
[56] The HSU’s objections to the approval of the Agreement are dismissed.
Nurses’ Unions
[57] The Nurses’ Unions filed joint submissions 47. In that submission the Nurses’ unions stated that they believed the applicant sought to remove a number of key conditions from employees, however did not see that the removal of those conditions were subject to the BOOT and for that reason did not raise an objection to the Agreement. The Nurses’ Unions did submit however, that, with respect to:
a) Casual Assistants in Nursing /Nursing Assistants (AINs), the applicant should provide the Commission with details of the frequency of overtime and weekend work for casual AINs in order to be able to satisfy the Commission that the proposed Undertakings comply with the BOOT,
b) Clinical Nurse Specialists, these employees would be worse off compared to the Award because Overtime does not apply and Casual loading does not apply in addition to the weekend penalty rate, and
c) the approval of the Agreement, the Nurses’ Unions will be guided by the Commission.
[58] In respect of the BOOT, the applicant submitted Undertakings dated 27 April 2017 addressing the issues raised by the Commission and the Nurses’ Unions.
[59] I accept that the Undertakings provided by the applicant alleviate the concerns raised by the Commission and the Nurses’ Unions. A copy of the Undertakings is attached as Annexure A. Consequently, the Commission, as presently constituted, is satisfied subject to the undertakings referred to above, each of the requirements of ss.186, 187, 188 and 190, as are relevant to this application for approval, have been met.
[60] The HSU and Nurses’ Unions, being bargaining representatives for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2), the Commission notes that the Agreement covers these organisations.
[61] The Agreement is approved. In accordance with s.54 of the FW Act the Agreement will operate from 12 July 2017. The nominal expiry date of the Agreement is 30 June 2019.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code J, AE424847, PR594371>
Annexure A
1 Correspondence from FCB to the Commission dated 17 January 2017
2 McDonald’s Australia Pty Ltd v SDA [2010] FWAFB 4602 at [30]
3 National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB at [33]
4 Transcript PN57
5 Transcript PN60
6 Transcript PN83
7 Transcript PN90
8 Transcript PN92
9 Transcript PN93
10 Exhibit A3 – para 15
11 Exhibit A3 – para 16-18
12 Exhibit A3 – para 19.1
13 Exhibit A3 – para 19.2
14 Exhibit A3 – para 19.3
15 Exhibit A3 – para 19.4
16 Exhibit A3 – para 19.5
17 Exhibit A3 – para 19.6
18 Transcript PN140
19 Transcript PN142
20 Transcript PN144
21 Transcript PN147
22 Exhibit A4 – Annexure G
23 Transcript PN161-165
24 Transcript PN173-174
25 Transcript PN195-198
26 Transcript PN222
27 Transcript PN226-228
28 Transcript PN234
29 Transcript PN242
30 Transcript PN283
31 Transcript PN284-287
32 Transcript PN314
33 Transcript PN315
34 Transcript PN323
35 Transcript PN335-339
36 Transcript PN344
37 Transcript PN359-364
38 Transcript PN385
39 Transcript PN400
40 Transcript PN406
41 Transcript PN421
42 TranscriptPN425
43 Transcript PN431
44 Transcript PN471
45 Transcript PN445-467
46 Transcript PN437-440
47 Exhibit NSWNMA 1
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