CV Whalley Drive Aged Care Pty Ltd T/A Cumberland View

[2019] FWCA 2619

[2019] FWCA 2619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CV Whalley Drive Aged Care Pty Ltd T/A Cumberland View
(AG2018/7402)

CUMBERLAND VIEW AGED SERVICES NURSES ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 17 APRIL 2019

Application for approval of the Cumberland View Aged Services Nurses Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cumberland View Aged Services Nurses Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by CV Whalley Drive Aged Care Pty Ltd T/A Cumberland View. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 March 2019.

[3] On 3 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 11 April 2019. The undertaking deals with the following topics:

•  Clause 18(c) of the Agreement will be amended as follows:

“This clause shall not apply to a Director of Nursing (DON), excepting that for all ordinary duty performed by a DON on a Sunday will be paid a penalty rate of 55% of the ordinary rate of pay for that classification for such time worked.”

•  For the purposes of clause 20(d) of the Agreement, an employee who has accrued time off in lieu (TOIL) may, at any time, request payment of such overtime and it will be paid in the next pay period following the request, at the overtime rate applicable to overtime when worked.

•  Clause 22(a)(i) of the Agreement will be replaced as follows:

“Registered Nurses shall be entitled to 5 weeks annual leave (which is inclusive of an additional week under the National Employment Standards (NES) for ‘shift workers’ as defined). A ‘shift worker’ for the purposes of the clause and the NES is an employee who is regularly rostered over seven days of the week and regularly works weekends. An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.”

•  For the purposes of clause 24 of the Agreement, the Applicant undertakes that under the Agreement the entitlement to personal/carer’s leave will be no less than the NES entitlement of 10 days.

•  Clause 24(d)(iii) of the Agreement shall no longer apply.

•  For the purposes of schedule 1 of the Agreement, the definition of Pay Point 1 for an Enrolled Nurse shall be replaced as follows:

“Pay Point 1 is the allowance rate only (meaning it is used to calculate prescribed allowances only), and no employee will be paid in accordance with this wage rate.”

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

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

[7] The “Australian Nursing and Midwifery Federation (ANMF)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 January 2021.

COMMISSIONER

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