Eyre Peninsula Old Folks Home Inc

[2022] FWCA 917

[2022] FWCA 917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Eyre Peninsula Old Folks Home Inc

(AG2022/580)

Eyre Peninsula Old Folks Home Aged Care Sector Employees Enterprise Agreement 2021

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 16 MARCH 2022

Application for approval of the Eyre Peninsula Old Folks Home Aged Care Sector Employees Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Eyre Peninsula Old Folks Home Aged Care Sector Employees Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Eyre Peninsula Old Folks Home Inc (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 March 2022.

1. On 10 March 2022, 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 through the provision of an undertaking.

1. During the conference, the issue of low voter turnout was raised with the Applicant.  The Applicant informed me that 13 invalid votes were cast as well as the 18 valid votes. Of the 13 votes that were invalid, one of the envelopes received contained the instruction sheet and not a ballot paper, and the remaining 12 persons who cast the ballot did not provide the identification information such that the employer could ensure that the ballot papers were returned by persons covered by the proposed agreement. It is noted that the ballot papers were distributed in a physical form and only sent to employees. Of the invalid ballot papers, there were ten in favour of the approval and two against.

1. There is a further complication that one casual employee who was not entitled to vote did so. The Applicant made submissions that I should exercise my discretion under s.188(2) of the Act to approve the Agreement despite the minor procedural or technical error of allowing a casual employee who was not entitled to vote to do so. If I take a strict approach (by not including the ‘invalid’ votes to the total calculation), the number of employees who voted in favour of the Agreement would be 11 out of 18, and the vote of the ineligible employee would not impact the outcome. If I take a more relaxed approach (by including the ‘invalid’ votes to the total calculation), the number of employees who voted in favour of the Agreement would be 21 out of 30, and the vote of the ineligible employee have a lesser impact on the outcome. Regardless of the approach that I would take, it appears that in each case, the addition of the employee who was not entitled to vote did not affect the genuine agreement of the Agreement. During the conference, the United Workers’ Union (UWU) did not contend that the Agreement was not genuinely agreed. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has submitted an undertaking in the required form dated 15 March 2022. The undertaking deals with the following topics:

·   Each portion of a broken shift worked pursuant to clause 6.11 of the Agreement must be at least 4 hours for a full-time employee and 2 hours for a part-time or casual employee.

·   Clause 7.2.3 of the Agreement will operate consistently with the NES, such that an employer can only agree with an individual employee on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday.

·   The definition of de facto contained in clause 7.4.1(a) of the Agreement will operate so that it is consistent with s.12 of the Act.

·   Clause 7.4.6(a) of the Agreement will operate so that notice of personal leave must be given to the employer as soon as practicable (which may be a time after the leave has started).

·   Clause 47.1(e)(iv) of the Agreement, which deals with Apprentices, will not operate.

·   A casual employee will be paid 275% of the ordinary rate for hours worked on a public holiday, or a day substituted for a public holiday. This rate will be paid in substitution of any additional rate for shift or weekend work or casual loading.

·   Where a part-time employee’s hours are temporarily varied in writing, all time worked by a part-time employee, in excess of their rostered hours on any one day, will be paid at overtime rates.

·   Should a sleepover be introduced, conditions will apply the same as the Aged Care Award 2010 (the Award), except for the base rates of pay set out in the Agreement.

·   Clause 6.11(d) of the Agreement, dealing with broken shifts, will operate so that an employee will receive a minimum break of 10 hours between broken shifts rostered on successive days.

·   Higher Duties will apply consistent with the Award provisions contained in clause 27 of the Award.

·   The overtime meal allowance, contained in clause 5.2.3 of the Agreement, will also be paid when an employee works beyond one hour after the usual finishing time.

·   The words “payment for public holidays not worked” will be deleted from clause 4.4.2 of the Agreement.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertaking.

1. 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.

1. The UWU, 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 April 2024.

COMMISSIONER

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