Gladstone Community Linking Agency Limited T/A Gladstone Community Linking Agency Inc
[2022] FWCA 1438
•29 APRIL 2022
| [2022] FWCA 1438 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Gladstone Community Linking Agency Limited T/A Gladstone Community Linking Agency Inc
(AG2022/207)
Gladstone Community Linking Agreement 2021
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT ASBURY | BRISBANE, 29 APRIL 2022 |
Application for approval of the Gladstone Community Linking Agreement 2021 – s.217 application made to vary the Agreement to remove ambiguity or uncertainty – application granted
Background
Gladstone Community Linking Agency Limited T/A Gladstone Community Linking Agency Inc (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as Gladstone Community Linking Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.
During process of seeking approval of the Agreement, several administrative and typographical errors were identified in the Agreement. Accordingly, the Applicant filed an application pursuant to s.217 of the Act to vary the Agreement on the basis that these errors created an uncertainty or ambiguity in the Agreement. It is to that application I turn first.
Section 217 Application
The uncertainty or ambiguity is said by the Applicant to arise in relation to the following clauses in the Agreement:
Clause 3 – Application to Agreement:
“The Agreement shall be applied to the Employer and to Employees engaged by Gladstone Community Linking Agency Ltd (the Employer) who are employed in the classifications set out in this Agreement, to the exclusion of all other Awards or Agreements.
The Australian Workers Union (AWU) were a bargaining party to this Agreement and, subject to FWC approval, will be covered by the Agreement.
A copy of the Agreement will be placed on workplace noticeboards for easy access for all Employees.”
Clause 10.3(e):
“(e)The agreement made pursuant to clause 1.1(c)(i) and (ii) for minimum hours may subsequently be varied by agreement between the Employer and Employee in writing. Any such agreement may be ongoing or for a specified period of time.”
Clause 12.3(b)
“(b)The Employee is entitled, subject to clause 0(c) to receive the benefits and payments they would have received under clause 12 had they remained in employment until the expiry of the notice.”
Clause 23.1(b)(iii)
“(iii)Time worked up to the hours prescribed in clause 23.100 will, subject to clause 23.10(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual Employees).”
Clause 23.1(b)(iv)
“(iv)Overtime rates payable under clause 23.10 will be in substitution for and not cumulative upon the shift premiums prescribed in clause 24—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.”
Clause 23.2(f)
“(f)If time off for overtime that has been worked is not taken within the period of 3 months mentioned in caluse 23.2(e), the Employer must pay the Employee for the overtime, in the next pay period following those three (3) months, at the overtime rate applicable to the overtime when worked, based on the rates of pay applying at the time payment is made.”
Clause 32.6(b)
“(b) Evidence
An Employee who has given their Employer notice of the taking of leave under clause 32 must, if required by the Employer, give the Employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause 0.”
Clause 32.7(a)
“(a)The Employer will take steps to ensure information concerning any notice an Employee has given, or evidence an Employee has provided under clause 32.4 is treated confidentially, as far as it is reasonably practicable to do so.
Clause A.2.3(c)(i)
“(i)work under regular supervision except where this level of supervision is not required by the nature of responsibilities under 0 being undertaken;”
Clause A.3.2(o)
“(o)in the delivery of disability services as described in subclauses A.1.2 or 0, taking overall responsibility for the personal care of residents; training, co-ordinating and supervising other Employees and scheduling work programmes; and assisting in liaison and co-ordination with other services and programmes.”
Clause A.4.3(b)
“(b) Prerequisites
(vi) relevant four year degree with one years relevant experience;
(vii) three year degree with two years of relevant experience;
(viii) associate diploma with relevant experience;
(ix) lesser formal qualifications with substantial years of relevant experience; or
(x) attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake a range of activities,”
Clause A.5.3(b)
“(b) Prerequisites
(ii) relevant degree with relevant experience;
(i)associate diploma with substantial experience;
(ii)qualifications in more than one discipline;
(iii) less formal qualifications with specialised skills sufficient to perform at this level; or
(iv) attained through previous appointments, service and/or study an equivalent level of experience and expertise to undertake the range of activities required.”
The Applicant advised that an underlying corruption in the Agreement document caused cross references and clause numbering to revert to earlier versions of the Agreement document. The variation sought by the Applicant merely corrects the errors in the document caused by the corruption, so that the clause numbering and cross referencing are correct. The Applicant submits that without the variations being made, the relevant clauses are uncertain as they do not refer to either an existing clause in the Agreement, or alternatively to a relevant clause in the Agreement. The Applicant contends that the variations sought do not alter the intended and agreed meaning of the Agreement.
A question that the s.217 application raises, is whether the Agreement can be varied in the manner sought by the Applicant, as part of my consideration of approval of the Agreement. The answer to that question in my view, is yes, for the following reasons.
Section 217 of the FW Act provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
“(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
There are a number of conditions precedent necessary for the exercise of discretion under s.217. An application must have been made by one of the parties set out in ss.217(1)(a) to (c). The application has been made by the Applicant, which is the employer covered by the Agreement, thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case, the Agreement has not yet been approved however that is not a barrier to the use of s.217 for the following reasons.
An enterprise agreement is defined under s.12 of the Act to mean:
(a) A single-enterprise agreement; or
(b) A multi-enterprise agreement.
A single-enterprise agreement is defined in s.12 of the Act to mean “an enterprise agreement made as referred to in sub-section 172(2)”. Section 172(2) of the Act relevantly states that:
“An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement: or
……………………”
An enterprise agreement is made pursuant to s.182(1) of the Act in the following circumstances:
“(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
It is apparent on the material filed with the application for approval of the Agreement that employees were requested by the Applicant to approve the Agreement by voting on it (s.181(1)) in a ballot conducted on Thursday, 13 January 2022 to Monday, 17 January 2022. A valid majority of employees who participated in the ballot approved the Agreement, resulting in the Agreement being made on 17 January 2022 (s.182(1)). As the Agreement was made on 17 January 2022, it follows that it is an enterprise agreement made pursuant to s.172(2) and as defined under s.12 of the Act. Accordingly, it may be varied pursuant to an application made under s.217 of the Act.
Returning now to the merits of the application, I find that the provisions in the following clauses of the Agreement are ambiguous or uncertain:
· Clause 3;
· Clause 10.3(e);
· Clause 12.3(b);
· Clause 23.1(b)(iii);
· Clause 23.1(b)(iv);
· Clause 23.2(f);
· Clause 32.6(b);
· Clause 32.7(a);
· Clause A.2.3(c)(i);
· Clause A.3.2(o);
· Clause A.4.3(b); and
· Clause A.5.3(b)
I note that, as bargaining representative for the Agreement, I sought the views of the Australian Workers’ Union (the AWU) in relation to the application made under s.217. The bargaining representative indicated via email that it has no concerns in relation to the application.
Accordingly, the Agreement is varied in respect of each of the provisions dealt within the s. 217 application as set out below.
Clause 3 will be varied as follows:
“3.1The Agreement shall be applied to the Employer and to Employees engaged by Gladstone Community Linking Agency Ltd (the Employer) who are employed in the classifications set out in this Agreement, to the exclusion of all other Awards or Agreements.
3.2The Australian Workers Union (AWU) were a bargaining party to this Agreement and, subject to FWC approval, will be covered by the Agreement.
3.3A copy of the Agreement will be placed on workplace noticeboards for easy access for all Employees.”
Clause 10.3(e) will be varied as follows:
“(e)The agreement made pursuant to clause 10.3(c)(i) and (ii) for minimum hours may subsequently be varied by agreement between the Employer and Employee in writing. Any such agreement may be ongoing or for a specified period of time.”
Clause 12.3(b) will be varied as follows:
“(b) The Employee is entitled, subject to clause 12.3(c), to receive the benefits and payments they would have received under clause 12 had they remained in employment until the expiry of the notice.”
Clause 23.1(b)(iii) will be varied as follows:
“(iii) Time worked up to the hours prescribed in clause 23.1(b)(ii) will, subject to clause 23.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual Employees).”
Clause 23.1(b)(iv) will be varied as follows:
“(iv) Overtime rates payable under clause 23.1(b) will be in substitution for and not cumulative upon the shift premiums prescribed in clause 24—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.”
Clause 23.2(f) will be varied as follows:
“(f) If time off for overtime that has been worked is not taken within the period of 3 months mentioned in clause 23.2(d), the Employer must pay the Employee for the overtime, in the next pay period following those three (3) months, at the overtime rate applicable to the overtime when worked, based on the rates of pay applying at the time payment is made.”
Clause 32.6(b) will be varied as follows:
“(b) Evidence
An Employee who has given their Employer notice of the taking of leave under clause 32 must, if required by the Employer, give the Employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause 32.4.”
Clause 32.7(a) will be varied as follows:
“(a) The Employer will take steps to ensure information concerning any notice an Employee has given, or evidence an Employee has provided under clause 32.6 is treated confidentially, as far as it is reasonably practicable to do so.”
Clause A.2.3(c)(i) will be varied as follows:
“(i) work under regular supervision except where this level of supervision is not required by the nature of responsibilities under A.2.2 being undertaken;”
Clause A.3.2(o) will be varied as follows:
“(o) in the delivery of disability services as described in subclauses A.1.2 or A.2.2, taking overall responsibility for the personal care of residents; training, co-ordinating and supervising other Employees and scheduling work programmes; and assisting in liaison and co-ordination with other services and programmes.”
Clause A.4.3(b) will be varied as follows:
“(b) Prerequisites
(i) relevant four year degree with one years relevant experience;
(ii) three year degree with two years of relevant experience;
(iii) associate diploma with relevant experience;
(iv) lesser formal qualifications with substantial years of relevant experience; or
(v) attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake a range of activities.”
Clause A.5.3(b) will be varied as follows:
“(b) Prerequisites
(i) relevant degree with relevant experience;
(ii) associate diploma with substantial experience;
(iii) qualifications in more than one discipline;
(iv) less formal qualifications with specialised skills sufficient to perform at this level; or
(v) attained through previous appointments, service and/or study an equivalent level of experience and expertise to undertake the range of activities required.”
An order is also issued simultaneously with this Decision varying the Agreement from the date it is approved.[1]
Application for approval of the Agreement
Undertakings were also provided by the Employer in response to concerns the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Agreement; or
(b)result in substantial changes to the Agreement.
The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to s.190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.
The Agreement does not contain a flexibility term that is consistent with the requirements of s.204 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.
The AWU, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU.
The Agreement is approved in accordance with s.54 of the Act and will operate from 9 May 2022. The nominal expiry date of the Agreement is 9 May 2025.
DEPUTY PRESIDENT
Annexure A
[1] PR741052.
Printed by authority of the Commonwealth Government Printer
<AE515814 PR741044>
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