Everability Group Limited T/A Everability Group Limited

[2023] FWCA 960

[2023] FWCA 960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Everability Group Limited T/A Everability Group Limited

(AG2022/4914)

EVERABILITY GROUP LIMITED ENTERPRISE AGREEMENT 2021-2024

Social, community, home care and disability services
COMMISSIONER SCHNEIDER	PERTH, 13 APRIL 2023

Application for approval of the EverAbility Group Limited Enterprise Agreement 2021-2024

1. EverAbility Group Limited T/A EverAbility Group Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the EverAbility Group Limited Enterprise Agreement 2021-2024 (the Agreement or the New Agreement).

1. The application was made under section 185 of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement is a single enterprise agreement.

1. The Health Services Union (the Union), being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it.

Background

1. The Commission raised with the parties several preliminary issues identified in the Agreement that required attention.

1. In response to these issues, the Applicant provided further documentation, submissions, and an undertaking to remedy the most prevalent issues.

1. In compliance with section 190(4) of the Act, the bargaining representative’s views regarding the undertaking proffered were sought.

1. The bargaining representatives were provided with the opportunity to raise and address any objections they had to the undertakings proffered.

1. The Union raised concerns regarding classifications in the Agreement and casual loading.

1. The matter was subject to a conference before the Commission. After the conference, the Applicant provided an amended undertaking which resolved the casual loading issue.

1. The parties were sent Directions regarding the remaining issues in dispute, namely the disagreement over classification in the Agreement.

1. The Union filed materials first, followed by the Applicant.

1. The Applicant also provided an additional undertaking in attempt to remedy the remaining issues in dispute.

1. Pursuant to section 399 of the Act, I find it appropriate to determine the matter on the papers. What follows is my consideration of the issues remaining in dispute between the Union and the Applicant.

Submissions

Union

1. The Union’s concerns lie in regard to the transition from the current Enterprise Agreement (the Old Agreement), in which roles are matched against two or more classification levels, to the classifications under the New Agreement, being matched against one singular level.

1. The Union submits that, historically, when a position spans across multiple classification levels, the employees move through each increment on an annual basis until they are at the highest increment of the highest level.

1. The Union highlights the classification of the following positions are of concern:

·   Therapy Assistant (proposed Level 3)

·   Cadet Guide Dog Mobility Instructor (proposed Level 3)

·   Marketing and Communications Officer (proposed Level 4)

·   Project Officer (proposed Level 4)

·   Client Liaison Officer (proposed Level 4)

·   Senior Therapy Assistant (proposed Level 4)

·   Senior Client Liaison (proposed Level 5)

1. The Union submit that the above positions should be classified as a level higher under the New Agreement to ensure any future employees are better off.

1. The Union have also advised that, despite their concerns in relation to the aforementioned items, they are still supportive of the Agreement being approved.

Applicant

1. In response to the Union’s submissions, alongside its submissions, the Applicant provided a further undertaking. This further undertaking addressed the following positions, and amended their classification to a level higher:

·   Therapy Assistant (amended proposed Level 4)

·   Cadet Guide Dog Mobility Instructor (amended proposed Level 4)

·   Senior Therapy Assistant (amended proposed Level 5)

1. The undertaking leaves the below roles classifications remaining in disagreement. The Applicant’s submissions regarding the remaining roles are as follows.

• Marketing and Communications Officer

• Project Officer

• Client Liaison Officer

1. The Applicant submits that, the Union has not otherwise provided further information, other than reference to the 2018 Form F17 for the Old Agreement, that the positions identified are not appropriately matched as against the relevant classification levels under the Social, Community, Home Care and Disability Services Industry Award (SCHADS Award). [1]

1. The Applicant submits that, in the Old Agreement, the above three positions were classified against Level 4 (SCHADS Award Level 3) and Level 5 (SCHADS Award Level 4).

1. The Applicant submits that, in this agreement, the decision was made to split the positions into have an Officer role which would sit at Level 4 (SCHADS Award Level 3 and a Senior Officer role which would sit at Level 5 (SCHADS Award Level 4).  

1. The practical impact of the change is that the officer and senior officer roles are matched respectively to a single classification level in accordance with the difference in responsibilities associated, as opposed to the old singular role spanning across two classification levels to account for differences in seniority within the singular position.

• Marketing and Communications Officer – Level 4 (SCHADS Award Level 3)

• Senior Marketing and Communications Officer – Level 5 (SCHADS Award Level 4)

• Project Officer – Level 4 (SCHADS Award Level 3)

• Senior Project Officer – Level 5 (SCHADS Award Level 4)

• Client Liaison Officer – Level 4 (SCHADS Award Level 3)

• Senior Client Liaison Officer – Level 5 (SCHADS Award Level 4)

Consideration

1. I have considered the submissions of all parties in relation to the concerns raised by the Union.

1. I am satisfied that, due to the splitting of the positions into the officer and senior officer roles, it is no longer appropriate or necessary for these roles to be classified against two levels as they were in the Old Agreement when the roles had not been split.

1. There has been a change to the way in which the classification structure in the New Agreement relating to the positions in question have been matched against the SCHADS Award. However, there is still the ability for the employees to continue to progress to a higher classification level under the New Agreement.

1. The New Agreement, in Appendix 4, has significant guidance outlining the classification framework and descriptions for Employees. I am satisfied that, through this framework, there is protection in place for employees to ensure they are correctly classified at the appropriate level for their position.

1. I note the Applicant raised that the Union has done little to call into question the classification matching to the SCHADS Award. Although clearly not the parties’ primary concern, I believe it best to clarify that I am not satisfied that the classifications of the roles in question are incorrectly matched to the SCHADS Award. Accordingly, there are no issues arising from inconsistency or unfairness of the classifications under the New Agreement when compared to the SCHADS Award.

1. In conclusion, in contemplation of the considerations in the Act and the materials before me, I am satisfied that the new classification structure will not cause employees effected to be worse off under the New Agreement.

1. I am satisfied that the New Agreement should be approved, and I will now move to action its approval.

Conclusion

1. The Applicant has provided written undertakings. Copies of the undertakings are attached to the Agreement. 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.

1. Subject to the undertakings referred to above, and on the basis of the material submitted by the parties and contained in the application and accompanying declarations, I am satisfied that each of the requirements of sections 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. In accordance with section 201(2) of the Act, and based on the declaration provided by the organisation, I note that the Union is covered by the Agreement.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 20 April 2023. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

[1] [MA000100].

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