Corporate Development Services (Australia) Pty Ltd And WAPDAS Pty Ltd T/A Direct Care Resources
[2023] FWCA 3050
•26 SEPTEMBER 2023
| [2023] FWCA 3050 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Corporate Development Services (Australia) Pty Ltd And WAPDAS Pty Ltd T/A Direct Care Resources
(AG2023/3033)
DIRECT CARE RESOURCES ENTERPRISE AGREEMENT 2023
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 26 SEPTEMBER 2023 |
Application for approval of the Direct Care Resources Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Direct Care Resources Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Corporate Development Services (Australia) Pty Ltd And WAPDAS Pty Ltd T/A Direct Care Resources (together, ‘the employer’). The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 18 October 2021 and the Agreement was made on 22 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]
The Australian Service Union (ASU) being a bargaining representative for the Agreement, raised a number of objections, the effect of which contended that the Agreement did not pass the BOOT. Through chambers, I separately raised a number of more discrete (and less contentious) issues, the latter of which were resolved by the provision of undertakings.
The main issues raised by the ASU were:
· Whether the proper award comparator for the BOOT was Schedule B of the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), not Schedule E as the employer submitted with its Form F17A declaration.
· Whether a first aid allowance would be payable under the Award (and therefore applicable for the BOOT assessment).
· The fact that the entire workforce under the Agreement was comprised of casual workers but where the Agreement contained a number of terms addressing permanent employees.
· The sufficiency of breaks between rostered shifts in the context of a shift pattern comprised of 7 x 16hr days plus a ‘sleepover’, then 7 days’ off.
Having regard to the issues raised, I directed the parties to exchange submissions on the matters raised by 14 September 2023 and then file any further reply submissions by 18 September 2023. Having received the parties’ respective submissions, I informed the parties that I considered the matter was capable of being addressed ‘on the papers’ - no objection was received in relation to adopting that course of action.
For the reasons that follow, I am satisfied that the Agreement ought to be approved.
Issue 1: the proper BOOT comparator
The employer submitted that the appropriate approach to resolving the correct classification comparator for the Award was the “major and substantial” test and the ASU did not demur. While that test is sometimes described in terms such as the “major, substantial or principal” employment test, nothing turned on that difference, if there is one. I am satisfied that the major and substantial employment test is the appropriate test.
In Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18, Sheldon J described the application of the test (at 19, as set out in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696, [38]-[39] (Logan J)):
“The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.
It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.”
As Logan J stated in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696:
“A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.”
Those principles were applied in (for example): Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325, [64] - [66] (Bromberg J); Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621, [27] (Besanko J).
The classification descriptors in the Agreement are contained in Schedule 1. Schedule 1 provides for four levels of “Direct Care Resources Support Workers” (generically, I refer to these as “Support Workers”) from level 1 (at the entry level) to level 4 (being the most senior classification).
The classification descriptor under the Agreement for a level 2 employee is as follows:
“A Direct Care Resources level 2 shall mean an employee who has satisfied the level 1 requirements and has completed a minimum employment engagement of six (6) months and 200 active hours will progress to level 2. An employee at this level is not required to have a relevant Certificate Ill.
An employee at this level will:
•Work independently and under general supervision.
•Establish and maintain a relationship of trust and respect with each person being supported.
•Assist and support individuals to develop independence by facilitating participation in budgeting, shopping and related tasks of managing their own home.
•An employee at this level performs a broad range of tasks involving the utilisation of a range of develop skills in the provision of domestic assistance and support.
•Assist individuals to develop and maintain personal, community and social relationships.
•The employee will work within clearly defined guidelines and undertake arrange of different activities requiring the application of acquired skills and knowledge.
•General features at this level consist of performing function which are defined by established routines, methods, standards and procedures within limited scope to exercise initiate in applying work practices and procedures.
•Positions at this level allow employees the scope for exercising initiative in the application of established work procedures.
•Employees will be responsible for managing time, planning and organising their own work.
•Position in this level require skills in oral and written communications with clients and/or residents.
•Indicative but not exclusive tasks include, the able to undertake the requirements of level 1 including undertaking personal care duties, monitoring medications, assistance with communications, accompanying clients on outings, domestic assistance and or organising appointments.”
It is not necessary to set out the other classifications. It suffices to note that the level 1 classification has a number of common elements but, as might be expected, the level 1 classification contemplates no independent work and the experience required is less than 12 months in the industry. By contrast, and as might also be expected, a level 3 support worker will work under more limited supervision and the focus of the work now includes a mix of planning and coordination activities, in addition to slightly expanded personal care duties. At level 4, the independence is expanded as is the breadth of discretion that may be exercised within standard practices and procedures. The classification description for level 4 is much more minimal.
Schedule B of the Award provides classification definitions for ‘social and community services employees’ and Schedule E for ‘home care employees’.
The Award does not define what is a ‘social and community services employee’ or a ‘home care employee’ other than by the respective classification definitions in Schedule B or E. The Award does contain, in clause 3.1, a definition of the ‘home care sector’ and the ‘social and community services sector’. Those definitions are (with the underlined parts being highlighted by the ASU):
“home care sector means the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence”
“social and community services sector means the provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services
To avoid doubt, an employee will not be precluded from being engaged under Schedule B instead of another schedule, merely because they provide services in a private residence or in outreach.”
While these definitions do not directly underpin the classification definition in Schedules B or E, the parties referred to them and I will return to them below.
The classification definitions in the Award are lengthy and, for that reason, I will not set them out in full. As with the Agreement classification descriptions, I consider it sufficient to refer to the level 2 classification.
The classification definition for a level 2 ‘social and community services employee’ under the Award is in item B.2 of Schedule B. It is as follows:
“B.2 Social and community services employee level 2
B.2.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.
(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2 Responsibilities
A position at this level may include some of the following:
(a)undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;
(b)achieve outcomes which are clearly defined;
(c)respond to enquiries;
(d)assist senior employees with special projects;
(e)prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f)perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g)provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h)perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i)assist in calculating and maintaining wage and salary records;
(j)assist with administrative functions;
(k)implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l)supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;
(m)assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;
(n)possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
B.2.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a)Skills, knowledge, experience, qualification and/or training
(i)basic skills in oral and written communication with clients and other members of the public;
(ii)knowledge of established work practices and procedures relevant to the workplace;
(iii)knowledge of policies relating to the workplace;
(iv)application of techniques relevant to the workplace;
(v)developing knowledge of statutory requirements relevant to the workplace;
(vi)understanding of basic computing concepts.
(b)Prerequisites
(i)an appropriate certificate relevant to the work required to be performed;
(ii)will have attained previous experience in a relevant industry, service or
an equivalent level of expertise and experience to undertake the range of activities required;
(iii)appropriate on-the-job training and relevant experience; or
(iv)entry point for a diploma without experience.
(c)Organisational relationships
(i)work under regular supervision except where this level of supervision is not required by the nature of responsibilities under B.2.2 being undertaken;
(ii)provide limited guidance to a limited number of lower classified employees.
(d)Extent of authority
(i)work outcomes are monitored;
(ii)have freedom to act within established guidelines;
(iii) solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.”
The classification definitions for ‘home care employees’ are more succinctly stated, and the level 2 classification is as follows:
“E.2 Home care employee level 2
A position in this level has the following characteristics:
E.2.1 Accountability and extent of authority
An employee in this level performs broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures. May assist others in the supervision of work of the same or lower level and is responsible for assuring the quality of work performed.
E.2.2 Judgment and decision-making
In these positions, the nature of the work is clearly defined with established procedures well understood or clearly documented. Employees in this level are called upon to use some originality in approach with solutions usually attributable to application of previously encountered procedures and practices.
E.2.3 Specialist knowledge and skills
Indicative but not exclusive tasks include: the provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, make beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, fitting and changing of catheters, assistance with communication, accompanying clients on outings, domestics assistance and organising appointments.
E.2.4 Interpersonal skills
Positions in this level require oral communication skills and where appropriate written skills, with clients, members of the public and other employees.
E.2.5 Qualifications and experience
As a minimum an employee in this level will have satisfactorily completed the requirements of level 1 or equivalent. Indicative but not exclusive of the qualifications required in this level include Home Care Certificate or equivalent; or relevant experience/on-the-job training commensurate with the requirements of work in this level.”
While I have not set out the classification descriptions for levels 1, 3 and 4 (or higher) of each of Schedule B and E, the differences (as might be expected) when increasing from levels 1 – 4 reflect increasing levels of experience, responsibilities, duties, and leadership or supervisory functions. The level 2 classifications in the Agreement and the Award are sufficiently illustrative for the purposes of providing the reasons for my decision and, while I have not set out the other descriptions herein, I have had regard to and considered them.
The parties also referred to a position description for the employer’s Support Worker positions. The ASU referred to a position description dated July 2022 and the employer a version dated August 2022. While the position descriptions relied upon were slightly different, the differences were immaterial.
The position descriptions were more detailed than the classifications descriptions contained in Schedule 1 of the Agreement, albeit the position description did not differentiate between classification levels at all.
The ASU relied upon the following extracts from the position description for Support Workers:
“The Position Description states that DCR’s mission is to “To attain a business
leadership position in the industry and provide the highest quality personal care and
associated services to clients in the child protection and disability sectors.”” (ASU emphasis)“The Support Worker primary responsibility is to provide high quality direct care and
supervision to the clients of Direct Care Resources.” (ASU emphasis)
Support Workers are required to “possession or willingness to enrol in a Certificate IV in related field in order to work within Child Safety Houses.”
More generally, the ASU assert that the day-to-day duties of the employer’s Support Workers encompass:
• Providing direct care and supervision to disability clients or youth who are in child protection.
• Undertaking domestic duties such as cleaning, washing, shopping and cooking.
• Providing personal care such as showering, monitoring hygiene and assisting with
dressing.
• Administering medication.
• Providing lifestyle support such as teaching, promoting or maintaining living skills.
• Supporting DCR clients to meet their individual goals by working to personal plans such as National Disability Insurance Scheme (NDIS) plans.
• Client advocacy.
• Promoting or supporting community access and social inclusion.”
I accept that the above items are reflected in the position description or the Agreement classification descriptions, although they are not the only duties. Following on from those duties, the ASU submits that the above duties align with Schedule B – Social and Community Services work. They further submit:
“7. Schedule E - Home Care employees undertake semi-skilled work and are limited to
personal care, domestic assistance, or home maintenance to aged persons and those with a disability.
8. Schedule E – Home Care employees cannot work with youth, which DCR Support
Workers are required to undertake.
9. Schedule E - Home Care employees do not provide lifestyle support, provide client
supervision, administer medication, work to NDIS plans, support the goals and
aspirations of NDIS participants, and support community access and social inclusion.10. The majority of DCR clients are participants of the NDIS. The NDIS provides funding for Schedule B – Social and Community Services levels 2 to 3. The NDIS does not provide funding for Schedule E – Home Care work.”
In relation to qualifications that need to be held, the ASU submits that under Schedule E of the Award that qualifications are desirable but not essential. By contrast, it asserts that under the position description, Support Workers are required to “possession or willingness to enrol in a Certificate IV in related field in order to work within Child Safety Houses”. The ASU asserts that any Support Worker who holds a Certificate IV should be appointed to pay point level 2.2 under Schedule B of the Award.
In relation to training, the ASU submits that support workers are provided with “extensive training” but, by comparison, Schedule E of the Award does not require extensive training and employees “generally learn on the job as the work is considered semi-skilled work”.
For the location of work, the ASU acknowledges that Support Workers “generally” perform working in supported independent living services and private residences which are owned or rented by the employer’s clients. However, it states for young people in child protection, the work is performed in “designated youth residentials”. It also submits that Support Workers perform work “in community settings” when assisting and supporting the employer’s disability clients in accessing the community.
As to the “location” of work, the ASU submits that Schedule B of the Award supports social and community services employees working in both private residents and other settings but Schedule E home care employees are restricted to private residencies.
The employer also filed submissions. While I have not summarised them here, I have considered them.
I am satisfied that the appropriate comparator is Schedule E. While acknowledge there is some overlap in the classifications between Schedule B and E, and that aspects of the work of Support Workers covered by the Agreement can be described by either schedule, the more appropriate classification is Schedule E. My reasons for this conclusion briefly follow.
The starting point is that the basis for comparison is the enterprise agreement classification descriptions in Schedule 1 and the position description, as might be applied to either Schedule B or E of the Award. While the definitions of the “home care sector” and “social and community services sector” in clause 3.1 of the Award provide some guidance, the relevant definitions under the Award are the classification definition in Schedule B and E.[2]
As to the work required to be performed, the primacy of that work is aimed at “the provision of domestic assistance and support”. While aspects of that work (for a level 2 worker, at least) require a Support Worker to “[a]ssist and support individuals to maintain independence”, that does not derogate from what I consider to be the major function of the role.
For a level 2 employee, the indicative tasks include “undertaking personal care duties, monitoring medications, assistance with communications, accompanying clients on outings, domestic assistance and or organising appointments.” I consider these indicative tasks comfortably conform to the classification definition of the (more extensive list) indicative of tasks listed in item E.2.3 of Schedule E of the Award. While I acknowledge that there is some similarity with the responsibilities in items B.2.2(m) of Schedule B of the Award, that does not alter my conclusion that the Agreement classification descriptions better describe the provision of domestic assistance and support, which I consider is a key quality of the home care employee classification definitions in Schedule E of the Award.
The examples I have provided so far were illustrated by reference to a level 2 employee, because I have set out the level 2 classification descriptions above. The ASU sought to distinguish Schedule E work as “semi-skilled”. Aspects of level 1 work might meet that description but that is a factor that points against the ASU preferred conclusions, at least at levels 1 and 2 under the Agreement. I note the level 1 classification under the Agreement includes examples “semi-skilled” tasks when the major and substantive functions are considered, many of which are replicated in level 2 of the Agreement classifications.
Regardless of what might be concluded by the label “semi-skilled”, I consider that aspects of level 2 home care work under Schedule E of the Award, and certainly by levels 3 and 4, involved more complex responsibilities. For example, level E.2 employees under the Award are responsible for changing catheters. By level 3, tasks and skills include computer and office skills, coordinating support staff, assisting clients with extra needs, scheduling maintenance programs. By level 4, employees under the Award are contemplated to provide direction, leadership, administration and rostering of direct care employees (among other tasks and responsibilities). Level 4 employees under the Award can be required to develop care plans and oversee the provision of domestic services.
I disagree with the ASU’s contention that home care employees under the Award “cannot work with youth”. There is nothing in the Schedule E that provides such a limitation or to suggest that the provision of domestic assistance and support would not be provided to such a cohort. While I apprehend that the ASU’s submissions are to the effect that some of the employer’s business – e.g. for child protection clients – is not work in a “private residence”, it was not in contention that the employer’s Support Workers at least “generally” perform work in private residences. Again in both cases, the major and substantial work being performed is for the provision of domestic assistance and support.
The position description provides, in part at least, a somewhat more expanded list of responsibilities, although it is not particularly clear which of those might apply to which level of Support Workers given the position description does not identify which level(s) it applies to. The ASU relies on the “DCR Mission” statement, which refers to services in the “child protection and disability sectors”. I consider that statement, which is largely exhortatory, does not reflect the work that is actually required of Support Workers.
A better example from the position description is the section “Description of the Role”, which in my view focuses on the provision of “high quality direct care and supervision to the clients of Direct Care Resources.” While I note that that ASU rely on that to demonstrate that the services provided are social and community support work (as described by Schedule B of the Award), I consider that a complete reading of the position description shows, consistent with the Agreement, that the major and substantial work performed is domestic assistance and support of a kind best described by the classification definitions in Schedule E of the Award.
In relation to qualifications, and the Certificate IV in particular, the only classification in the Agreement which arguably requires a Certificate IV is the level 4 Support Worker. The position description states “Possession or willingness to enrol in a Certificate IV in related field in order to work within Child Safety houses”. A Certificate IV is not a requirement for a home care employee under Schedule E of the Award. Level 2 of Schedule B contains a perquisite for an “appropriate certificate relevant to the work required to be performed.”
While the qualifications in the Award for Schedule E employees (particularly levels 2 – 4) are stated in a non-exclusive basis, I accept that a Certificate IV qualification is higher than what would be generally expected for home care employees under the Award. There does appear to be a requirement – set by the State of Queensland – to hold a Certificate IV in order to work in child safety houses. The employer submits (and no demurrer was taken) that many of its Support Workers contain no such qualification. I note that the employer requires other mandatory checks or requirements as well, none of which are mentioned in the Award or the Agreement, particularly relating to working with children. However, other than the Queensland government requirement, there does not appear to be any connection between the Certificate IV qualification and the work that is actually undertaken.
I accept that the ASU has identified some tasks, activities and qualifications that might arguably be covered by the classification definitions in Schedule B of the Award. But having regard to the Agreement classifications, I consider both quantitatively and qualitatively the major and substantial part of the Support Carers’ work is best described by Schedule E for each of levels 1 - 4.
Accordingly, the Agreement satisfies the BOOT on the basis that the proper comparator is Schedule E of the Award. There was no dispute that, if Schedule E was the proper comparator, that the BOOT would be passed save, perhaps for the items follow.
Issue 2 - first aid payment
Clause 20.6 of the Award provides:
(a) First aid allowance—full-time employees
A weekly first aid allowance of 1.67% of the standard rate per week will be paid to a full-time employee where:
(i)an employee is required by the employer to hold a current first aid certificate; and
(ii)an employee, other than a home care employee, is required by their employer to perform first aid at their workplace; or
(iii)a home care employee is required by the employer to be, in a given week, responsible for the provision of first aid to employees employed by the employer.
(b) First aid allowance—casual and part-time employees
The first aid allowance in 20.6(a) will apply to eligible part time and casual employees on a pro rata basis on the basis that the ordinary weekly hours of work for full-time employees are 38.
The ASU contends that employees are required to hold first aid certificates and, it follows, anyone holding a first aid certificate ought to receive the first aid allowance. For a full-time employee, that represents approximately $990 per year on an example given by the ASU. I note that if the first aid allowance was payable, it is likely that the BOOT would not pass for a number of employees. This is because the Award allowance represents 1.67% of a standard week and, on the assessment made by the Commission’s agreements team, the pay rates in the Agreement appear to be between 0.99% - 1.90% above the Award.
Clause 5.4.6 of the Agreement provides:
“5.4.6 First Aid and CPR
(a) Direct Care Resources will assist employees in the attainment of First Aid Training.
(b) For all Casual employees who have a length of active service greater than 12 months with Direct Care Resources, Direct Care Resources will pay the course costs (registration and materials) of First Aid Refresher Training and 2 hours of paid Normal Time earnings at the applicable Pay Scale of the employee.
(c) Direct Care Resources will arrange and facilitate the training courses and if an employee fails to attend a scheduled training course without providing notice in writing that they are unable to attend within 48 hours of the schedule training, the employee will not receive any payments and will need to arrange their own refresher training at their own costs.”
I am not satisfied that the first aid allowance under the Award would be payable.
I do not consider that the first aid allowance is payable, however. First, clause 5.4.6 of the Agreement does not require Support Workers to perform first aid work. While the clause is clearly suggestive of such a requirement, it does no more than provide for staff to become qualified. Second, the employer submitted (and there was no contrary submission) that Support Workers are not required to provide first aid other than the event of an emergency. The employer submits:
“… even in the event of an emergency involving a client, a Support Worker will always phone emergency services to attend the client’s residence. Support Workers are not required by the Employer to be responsible for the provision of first aid to other employees of the Employer, as required by clause 20.6(a)(iii).”
Following amendments to the Act that took effect on 6 June 2023, the Commission is to only have regard to patterns of work or types of employment if they are reasonably foreseeable at the test time. In those circumstances, I do not consider it is a reasonably foreseeable work pattern for employees to be responsible for the provision of first aid: see clause 26(a)(iii) of the Award. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that such patterns of work described by the employer (set out above) are not reasonably foreseeable, as that is relevant for the better off overall test. If those circumstances change, however, the employees and ASU could be entitled apply to the Commission for it to reconsider whether an enterprise agreement passed the better off overall test: s 227A of the Act.
Issue 3 - non-casual employee coverage
There was no dispute that all of the approximately 275 workers entitled to vote for the Agreement were only casual employees, with no full-time or part-time workers engaged. The ASU contends that Agreement includes clauses that pertain solely to full-time and part-time employment, which are entirely irrelevant to the workforce in question.
I have inferred that the ASU’s contention is to the effect that the Agreement – which is expressed to cover full-time and part-time workers – does not represent a cohort “fairly chosen”: see s 186(3)-(3A) of the Act. No issue was raised regarding whether casuals and non-casuals were geographically, operationally or organisationally distinct: s 186(3A).
The employer submitted it has previously made offers of casual conversion to its Support Workers but no one took up that offer. It also submitted that at a bargaining meeting on 22 March 2023, it made a further standing offer to all Support Workers for casual conversion to permanency but no one has since taken up that offer. Those submissions were not challenged.
While it does not appear that there is any present appetite among the casual Support Workers to convert to permanent employment, I am satisfied that the voting cohort for the Agreement was fairly chosen. In circumstances where there is a statutory entitlement to make a casual conversion request, as well as a conversion entitlement in the Agreement itself, it is plausible that such an event will occur. But whether or not that proves to be the case, it is also prudent for the employer to ensure that there is an applicable enterprise agreement that would apply to such workers. Making provision for such possibilities does not render the Agreement not fairly chosen.
Issue 4 - rostering
Under the Agreement, Support Workers are rostered to a ‘7 days on and 7 days off’ roster, which is illustrated in Schedule 4 of the Agreement. As a table to Schedule 4 indicates, payment for the hours worked comprises:
· For Monday to Friday, 10 ordinary hours equivalent, 2 hours at time and a half, 4 hours at double time, two meal allowances, and 1 paid sleepover.
· For Saturdays, 12 hours at time and a half, 4 hours at double time, two meal allowances, and 1 paid sleepover.
· For Sundays, 16 hours at double time, two meal allowances, and 1 paid sleepover.
The ASU contends that the proposed roster “substantially deviates from the National Employment Standards and Clause 25 of the SCHADS Award.” I infer that the reference to the National Employment Standards is to Division 3 (Maximum weekly hours) of Part 2-2 of the Act. The hours are described as a “significant health and safety risk” and states that a number of “safeguard” provisions in the Agreement (which are reflective of those from the Award) are “irrelevant” for the employer’s casual workforce. The Agreement provisions said to be “irrelevant” were:
· Clause 6.1: Ordinary hours of work.
· Clause 6:2: Span of Hours.
· Clause 6.3: Rest breaks between work.
· Clause 6.4: Rosters.
I do not accept that the above-mentioned clauses are irrelevant to employees. Clause 6.1.1 is expressed to apply generally. Clause 6.1.2 (which deals with rostered days free of work) does exclude casuals. However, the roster which casuals are required to work is in Schedule 4 and that roster expressly allows for 7 consecutive days off. If that roster pattern was to change, the employer would be required to comply with the change provisions (clause 4.7) and, of course, the National Employment Standards.
Clause 6.2 of the Agreement defines the span of ordinary hours generally. It applies to casuals and permanent employees equally. So much is clear by Schedule 4 of the Agreement (which also applies to casuals) that only provides for ordinary hours reflected in clause 6.2.
Clauses 6.3 and 6.4 – respectively titled “Rest breaks between rostered work” and “Rosters” –also applies to casuals and non-casuals equally.
More substantively, while the 7 x 7 roster in Schedule 4 clearly contemplates long hours, those hours are paid at applicable overtime or penalty rates and there is a significant period of rostered days off that follow. The employer submitted that this roster has been in operation for over 10 years without issue and a staff survey undertaken during bargaining returned a 93.8% approval for its retention. The employer also submitted that the 7 days of rostered days off was more beneficial than that provided for under the Award. The ASU did not dispute those contentions, but submitted that the reason workers support the roster is the need to increase their rate of pay “because of the underpayment built into the classification structure.”
Having regard to the above matters, I am satisfied that the roster in Schedule 4 of the Agreement does not cause the Agreement to fail the BOOT, including having regard to the National Employment Standards.
Other matters
As noted above, I separately raised a number of more discrete (and less contentious) issues, concerning satisfaction of the BOOT.
The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.
Conclusions
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Australian Service Union 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) I note that the Agreement covers the organisation.
The Agreement was approved on 26 September 2023 and, in accordance with s.54, will operate from 3 October 2023. The nominal expiry date of the Agreement is 27 September 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
[2] Cf, ASU v Focus ACT[2021] FWC 2391 (Dean DP) at 56.
Printed by authority of the Commonwealth Government Printer
<AE521580 PR766418>
0
2
0