Katerina Pegg
[2022] FWCA 775
•3 MARCH 2022
| [2022] FWCA 775 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Katerina Pegg
(AG2021/8753)
Bayside Respite Care Support Workers Certified Agreement 2005
| Health and welfare services | |
| COMMISSIONER SIMPSON | BRISBANE, 3 MARCH 2022 |
Application for termination of the Bayside Respite Care Support Workers Certified Agreement 2005 – Application granted.
Ms Katerina Pegg (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Bayside Respite Care Support Workers Certified Agreement 2005 (the Agreement) after its nominal expiry date. The Agreement’s nominal expiry date was 10 April 2009.
A directions hearing by telephone was held on 12 January 2022. Subsequent to the hearing, I issued directions that stated by 5:00pm Wednesday 19 January 2022, the Respondent was to provide to each of its employees a copy of the Form 24B and Form 24C made by Ms Pegg, and a copy of the directions. The directions further provided that the Respondent was to notify chambers by 5:00pm, 21 February 2022 whether it opposed the termination, or in the alternative, file submissions and witness statements in relation to the application. The directions also gave employees a chance to provide any submissions and/or witness statements regarding the application through emailing my chambers by 28 February 2022.
On 18 January 2022, chambers received confirmation that the material had been served on the relevant employees. On 18 February 2022, the Respondent notified my chambers that they did not oppose termination of the Agreement, but sought that the termination of the Agreement not come into effect until 1 September 2022, or alternatively 1 July 2022.
The matter was listed for hearing on 3 March 2022 to deal with the issue of the termination date. Ms Pegg didn’t appear at the hearing, but had provided brief submissions prior, and the Respondent was represented by Mr Simon Obee from EI Legal. I granted permission for the Respondent to be represented under s.596 of the Act, as I was satisfied it would help in the matter being dealt with more efficiently and the employer has no internal human resources expertise.
Sections 225 and 226 of the Act relevantly provides:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(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.”
“226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”
As at the issuing of this decision, only one employee of the Respondent contacted my Chambers indicating they were aware of superior conditions in the Award. I have taken this into consideration.
Submissions regarding Termination Date
The Respondent submitted that it would face extreme difficulty transitioning to the SCHADS Award before 1 September 2022. The Respondent submitted that this is due to the significant differences between the Agreement and the SCHADS Award which the Respondent will have to accommodate for. Further, the Respondent submitted that the Agreement has been in place since 2006, prior to the award modernisation process and the SCHADS Award, and that it bears little resemblance to the SCHADS Award, meaning the Respondent therefore has no familiarity with operating under the SCHADS Award.
The Respondent noted in particular:
· The difference in classification level structure between the Agreement and the SCHADS Award. The Agreement only has three levels of classification and that the Agreement does not differentiate between “home care” work and “social and community care” work (of which the Respondents’ employees engage in both);
· Casual employees under the Agreement are only entitled to 23% casual loading, under the SCHADS Award the casual loading is 25%.
· The minimum engagement period in the Agreement is two hours. The minimum engagement for an employee performing social and community work (which covers the majority of the work of the Respondent’s employees) is three hours.
· The Agreement allows for up to 50 hours to be worked per week (voluntarily) without the payment of overtime. Under the SCHADS Award overtime is paid after 38 ordinary hours per week.
· In respect of sleepovers, the Agreement provides that an employee will be provided with at least 2 hours work, immediately before or after the sleepover. Under the SCHADS Award, where an employee is rostered to work before / after the sleepover, it must be for four hours work.
· In the Agreement an employee is only paid for work performed during a sleepover, when they perform work that in total exceeds 2 hours. It is then paid at their ordinary hourly rate. Under the SCHADS Award an employee is paid for any time worked, and the minimum payment will be 1 hour. This is paid at overtime rates.
· In respect of meal breaks – under the Agreement a meal break is given when an employee works 6 hours. Under the SCHADS Award the entitlement is after five hours work.
· In respect of overtime, under the Agreement overtime is paid at x1.5 for the first three hours, then double time. Under the SCHADS Award it is x1.5 for the first two hours, then double time.
· In respect of “extended care”, under clause 3.12 of the Agreement an employee is paid a set fee per day for a 24 hour excursion. Under the SCHADS Award an employee will be paid for 10 hours work, and overtime (or time off in lieu) thereafter.
· The Agreement does not provide for any of the following protections provided for in the SCHADS Award including:
· Many of the allowances listed in clause 20 of the SCHADS Award
· Extra entitlements when working “broken shifts” (ie a shift in two or more parts) (clause 25.6 of the SCHADS Award)
· Ceremonial leave (clause 35 of the SCHADS Award)
· Family & domestic violence leave (clause 36 of the SCHADS Award)
In light of these significant differences the Respondent submitted it will need to undertake a number of steps to transition to the SCHADS Award including:
· Reclassification of the employees it currently employs;
· Restructuring of its rostering arrangements;
· Recruiting new employees to cover new shift patterns;
· Consideration of the need to engage part-time employees instead of casual employees;
· Updating or changing its payroll software; and
· Advising and educating employees on the new arrangements.
The Respondent submitted that they are a small organisation with only one General Manager and two casual administrative employees who would have responsibilities in regards to the transition. The Respondent has no dedicated internal human resources or payroll personnel.
It was further submitted by the Respondent that they provide essential services to many vulnerable persons and any break in its services due to concerns that it was not in a position to engage employees compliantly under the SCHADS Award, would have an adverse effect on such persons.
Furthermore, the Respondent submitted that if the Commission is not minded to terminate the Agreement on a date on or after 1 September 2022, then the Respondent seeks that the Agreement be terminated on a date on or after 1 July 2022, given that there are a number of significant amendments being made to the SCHADS Award on 1 July 2022 and it will cause significant difficulty to the Respondent to transition to the current terms of the SCHADS Award if it is then required to alter its practices again on 1 July 2022.
The Applicant submitted that the Respondent was aware far long ago about the expiration of the Agreement, and chose not to disclose to staff the potential consequences of such expiration and implications on their pay conditions. The Applicant further submitted that she believed it is absolutely not fair for staff to wait that long and the termination should be sooner than later.
Consideration
I am satisfied that the tests in section 225 and 226 of the Act have been met. The Agreement has passed its nominal expiry date, and the Application was filed by an employee of the Respondent.
The employer does not oppose the application. Employees have been given an opportunity to be heard on the matter and the only views expressed to the Commission have been views in favour of the granting of the application. It is apparent the Agreement provides inferior conditions of employment compared to the Award in a range of areas. There are no public interest grounds that would tell against the granting of the application.
I have taken into consideration the issues raised in the Respondent’s submission with regard to an appropriate operative date to terminate the Agreement. Those submissions have included that it is a small organisation with no internal human resources expertise and will be challenged in having to manage a range of issues in transitioning to the Award. The Respondent’s submissions drew attention to a range of conditions in the Agreement which are inferior to the Award, for the purposes of demonstrating the adjustment that will have to be made.
I am mindful that the Respondent is responsible for the care of highly vulnerable members of the community, and it is appropriate that the Respondent be afforded some time to make the necessary adjustments in managing the changes that will need to be implemented considering it appears they will fall to one person in management.
I do not accept that the work that will need to be undertaken will require a delay in the termination of the Agreement until the time proposed by the Respondent of 1 September 2022, or alternatively 1 July 2022. The Respondent has been on notice of the application since its filing on 6 December 2021.
I am also not persuaded that the fact of further amendments to the Award being operative from 1 July 2022 is a basis to delay employees access to minimum Award entitlements.
I have decided it is appropriate that the termination of the Agreement should have effect from 1 May 2022.
Conclusion
Accordingly, the Bayside Respite Care Support Workers Certified Agreement 2005 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from 1 May 2022.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<CA215 of 2006 PR739003>
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