Envigor Pty Ltd

[2019] FWCA 3432

[2019] FWCA 3432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Envigor Pty Ltd
(AG2018/2985)

ENVIGOR HOME CARE ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
COMMISSIONER BOOTH	BRISBANE, 20 MAY 2019

Application for approval of the Envigor Home Care Enterprise Agreement 2018.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Envigor Pty Ltd for approval of the Envigor Home Care Enterprise Agreement 2018 (the Agreement). The agreement is a single enterprise agreement.

[2] I conducted a number of conferences with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of undertakings.

[3] In accordance with a consent position reached between the parties at a conference of 10 April 2019, the Applicant has submitted an undertaking pursuant to s.190 of the Act and in the prescribed form, which is dated 1 May 2019 and provides as follows:

“I, Mr Nick Loudon, Director, Envigor Pty Ltd, give the following undertakings with respect to the Envigor Home Care Enterprise Agreement 2018, ("the Agreement"):

1. I have the authority given to me by Envigor Pty Ltd to provide this undertaking in relation to the application before the Fair Work Commission.

2. In respect of proposed clause 23, Envigor Pty Ltd ('Envigor') hereby undertakes to comply in all respects with s.87 and s.196(2) of the Fair Work Act 2009 ("the Act") and agrees to abide by the definition of a shift worker as provided by the Social, Community, Home Care and Disability Services Award 2010 ('the Award') as below;

2.1 "For the purpose of the NES, a shift worker is an employee who works for more than four ordinary hours on 10 or more weekends during the yearly period in respect of which their annual/eave accrues and is entitled to an additional week's annual leave on the same terms and conditions."

3. In respect of proposed clause 14.1, Envigor hereby undertakes to comply in all respects with s.62 Fair Work Act 2009 ("the Act") and acknowledges fully all obligations with respect to 'maximum weekly hours' and 'reasonable additional hours' including, but not limited to, an employee's right to refuse to work 'unreasonable additional hours' as prescribed by the Act.

4. In respect of proposed clause 6.3, Envigor hereby undertakes to comply in all respects with s.119(1)(b) of the Act and acknowledges fully all obligations with respect to redundancy entitlements in the event of business insolvency;

5. In respect of proposed clause 20 of the Agreement, Envigor hereby undertakes to at all times calculate any / all overtime entitlement(s) for the House Assistant classification at the nominated weekend rate (as current at time of the entitlement being accrued) of the Lifestyle Support Assistant Level 3.1 classification, under clause 10 (schedule B) of the Agreement.

6. In respect of proposed clause 15, Envigor hereby undertakes to comply in all respects with clause 25.6 of the Award with respect to broken (or split) shift provisions including, but not limited to, clause 25.6(c) and the requirement to remunerate any work performed beyond the span of 12 hours for a broken shift to be paid at double time.

7. Envigor hereby undertakes to comply in all respects with clause 25.9 of the Award with respect to Excursions, described as the supervision of clients in excursion activities involving overnight stays away from (either parties) home.

8. Envigor hereby undertakes to comply in all respects with clause 35 of the Award with respect to Ceremonial Leave, and leave required for legitimate ceremonial purposes.

9. Envigor hereby undertakes to comply in all respects with clause 28.2 of the Award with respect to the payment of TOIL (Time off in Lieu) at overtime rate(s) upon termination and/or at the request of the employee where an approved TOIL balance exists.

10. Envigor hereby undertakes to comply in all respects with clause 20.7 of the Award with respect to the application of Heat Allowance provisions to those employees affected at any time as detailed in the Award.

11. Envigor hereby undertakes to comply in all respects with clause 20.6 of the Award with respect to any requirement for an employee to install and/or maintain a telephone for the specific purpose of being 'on-call', as detailed in the Award.

12. Envigor hereby undertakes to comply in all respects with clause 20.2(d) of the Award with respect to the reimbursement of an employee for the purchase of rubber gloves, special clothing or safety equipment, except where such clothing or equipment is provided by the employer.

13. Envigor hereby undertakes to comply in all respects with clause 20.5(a) of the Award with respect to the requirement to reimburse an employee authorised by the employer to use their private motor vehicle in course of their active care duties, at the rate prescribed by the Award.

14. Envigor hereby undertakes to comply in all respects with clause(s) 20.5(b),(c) and (d) of the Award with respect to the requirement to reimburse an employee required to travel on duty and / or stay away from home overnight, all reasonably incurred expenses in respect to fares, meals and accommodation on the production of receipted accounts by the employee, provided that such expenses do not exceed the mode of transport, meals or the standard of accommodation agreed with the employer for these purposes.

15. In respect of proposed Schedule A of the agreement (Classification Definitions), Envigor hereby undertakes to ensure services provided by the House Assistant classification are not provided and/or made available to clients on shifts other than those consistent with the ordinary hours of a day worker, as identified in the agreement clause 14.1.

16. Envigor hereby undertakes to comply in all respects with clause 32 of the Award with respect to verified instances of Home Care employees being instructed and/or required to perform higher duties, provided that compliance with the obligations contained in this clause are not already fully acquitted by Envigor via the application of clause 11.3 of the Agreement - Duty Supervisors Allowance.

17. Envigor hereby undertakes not to engage in any hiring, rostering or shift management practices that may require any employee covered by the Agreement to be engaged by Envigor on a 'Sunday only' basis, via the implementation of suitable management policy and strict management guidelines forbidding such operational practice.

18. Clause 16.2 of the Agreement deals with non-active duty sleepovers. Envigor hereby undertakes to provide a guaranteed minimum shift length of not less than at least three hours work immediately before or immediately after a sleepover shift. (As a matter of clarification only, and to avoid any doubt, the “night shift rate” in clause 16.3 for active duty during a sleepover shift is the weekend rate of time and three quarters).

19. Clause 23.4 of the Agreement deals with matters including annual leave loading. Envigor undertakes to comply with subclause 31.3 (b) of the Award in respect of annual leave loading. Shiftworkers will be paid the higher of:

a) an annual leave loading of 17.5% of their ordinary rate of pay; or

b) the weekend and shift penalties the employee would have received had they not been on leave during the relevant period.

20. These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission. These issues were raised by the Commission in email correspondence received to MJSP Management Consulting Pty Ltd, employees of Envigor Pty Ltd, and bargaining agents for the proposed Agreement on Monday October 22, and also Friday November 30, 2018.”

[4] A copy of the undertaking was provided to the bargaining representatives by the Applicant at the same time of provision to the Commission and their views were sought in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking once finalised, though I note that a consent position was reached by the parties at the conference on 10 April 2019 with respect to the contents of the undertaking.

[5] 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.

[6] Subject to the undertakings extracted above, 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.

[7] The Australian Workers’ Union (AWU) 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 the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act and clause 4 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

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