Fullarton Lutheran Homes Inc

[2019] FWCA 2561

[2019] FWCA 2561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fullarton Lutheran Homes Inc
(AG2019/70)

FULLARTON LUTHERAN HOMES INC NURSING EMPLOYEES & ANMF (AGED CARE) ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER BISSETT	MELBOURNE, 17 APRIL 2019

Application for approval of the Fullarton Lutheran Homes Inc Nursing Employees & ANMF (Aged Care) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Fullarton Lutheran Homes Inc Nursing Employees & ANMF (Aged Care) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fullarton Lutheran Homes Inc. The Agreement is a single enterprise agreement.

[2] 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.

[3] The Agreement lodged contain errors at clause 16.1.6 and clause 16.4.4.3. On 9 April 2019 the Applicant filed amended pages 23 and 24 to the Agreement pursuant to s.586 of the Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

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

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Nursing and Midwifery Federation 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 April 2019. The nominal expiry date of the Agreement is 8 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE502928  PR706999>

Annexure A

Undertaking- Section 190

I, Nicole Miller, HR & WHS Manager for Fullarton Lutheran Homes Inc give the following undertakings with respect to the Fullarton Lutheran Homes Inc Nursing Employees & ANMF (Aged Care) Enterprise Agreement 2018 ("the Agreement"):

1. I have the authority given to me by Fullarton Lutheran Homes Inc to provide this undertaking in relation to the application before the Fair Work Commission.

2. This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

3. The following clauses will be read as replacing the same clauses in the Agreement:

10.4 PART-TIME EMPLOYEES

10.4.1 Part-time employees are those employees who work less than the full-time hours of 76 per fortnight and whose hours of work are reasonably predicable.

10.4.2 Payment

For ordinary working hours a part-time employee must be paid the hourly rate defined for the work performed, and be entitled on a pro rata basis to:

10.4.2.1 annual leave, sick leave and public holidays

10.4.2.2 uniform allowances, if applicable, and as prescribed

10.4.3 Overtime

10.4.3.1 Overtime will be paid in accordance with clause 16.4

10.4.3.2 In the accumulation of pro rata entitlements under this Agreement all authorised time worked in excess of rostered hours but within ordinary hours of work will receive credit for those hours.

10.5 PART-TIME AND CASUAL USE – WORKFORCE PLANNING

10.5.1 It is Fullarton Lutheran Homes Inc’s policy, to limit use of casual staff to supplement the permanent workforce that is required to deliver a standard of care that has been established by the Federal Government and which is required according to resident care levels at any given time. It is the responsibility of the Director of Care to ensure staff are rostered to meet resident care needs that regularly vary.

It is agreed that casual staff usage will be at levels required for supplementary labour force needs, i.e.; where demand is beyond anticipated levels of staff absenteeism and therefore, presents problems.  New employees will be employed according to this policy

10.5.2 Fullarton Lutheran Homes Inc will endeavour to maintain a permanent workforce at a level to effectively deliver quality care to residents in line with Resident Classifications variations.

10.5.2.1 The parties agree that the provisions as provided in this sub-clause are to be a condition of employment and will be available in the terms of the sub-clause by mutual agreement

10.5.2.2 The parties agree that as a condition of this Agreement, that an existing employee who is Casual may elect not to be appointed as a permanent part-time employee and may retain their existing arrangements in terms of rate of pay and regularity of actual rostered hours in place for a minimum of twelve (12) months prior to the date of advice pursuant to sub Clause 10.3.1 above.  It is acknowledged these employees will have access to Notice of Termination as provided by this agreement.

10.5.2.3 Should an employee choose to retain their conditions (as per sub-clause 10.3.1 above), Fullarton Lutheran Homes Inc will formally advise them of their conditions, e.g.; retain regular rostered hours, retain the casual loading, continuity of service and Long Service Leave, no ‘paid’ Annual or Sick Leave entitlements and the difference between that of a part-time employee

10.5.3 Employees, who commence with FLH during the life of the Agreement, will be appointed in accord with the conditions as provided by this Agreement, applicable to the nature of hours being offered.

10.5.4 Regular employees will work no more than 47 weeks per year and will take the remaining 5 weeks per year as unpaid recreational leave, at the direction of the employer

10.5.5 Employees may work additional hours in excess of their minimum contracted hours by mutual agreement with FLH, however, these additional hours will not be considered as a permanent allocation

10.5.6 All wage related entitlements such as annual leave, sick leave, carers leave, redundancy, etc. will be based on the part time employee’s actual hours worked over the previous 12 months, or from commencement of employment for those employees that have worked less than twelve (12) months

4. These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.

Signature

9 April 2019

Date