Kindi Capers Pty Ltd as trustee for GE Unit Trust T/A Just Better Care Eastern Suburbs; Just Better Care Inner West; Just Better Care St George; and Just Better Care Sutherland
[2022] FWC 1803
•11 JULY 2022
| [2022] FWC 1803 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Kindi Capers Pty Ltd as trustee for GE Unit Trust T/A Just Better Care Eastern Suburbs; Just Better Care Inner West; Just Better Care St George; and Just Better Care Sutherland
(AG2022/1469)
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 JULY 2022 |
Application for approval of the Just Better Care Eastern Suburbs Group Enterprise Agreement 2022 – application refused.
Kindi Capers Pty Ltd as trustee for GE Unit Trust T/A Just Better Care Eastern Suburbs; Just Better Care Inner West; Just Better Care St George; and Just Better Care Sutherland (the Employer) has made an application for the approval of the Just Better Care Eastern Suburbs Group Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Employer provides disability services and says that it “competes in a client market where the client determines what services they want and who they want to have those services provided by and importantly what cost they are prepared to pay”. The Employer says there are “market disruptors” who engage carers as subcontractors and “they can effectively do whatever they like as it is not an employee model.”
At the relevant time there were 77 employees eligible to vote. The Employer says that 74 of the 77 employees are casual, and 54 of the 77 employees are from non-English speaking backgrounds.
Of particular concern is that only 19 employees voted. 18 of the 19 employees voted to approve the Agreement (94.74%). On a careful perusal of the materials supplied by the Employer I am satisfied that the requirements of s.182 were met despite the low voter turn-out.
However I am not prepared to approve the Agreement because I am not satisfied that casual employees, who are the great majority of employees covered by the Agreement, will be better off overall under the Agreement.
The overtime provisions for casual employees in the Agreement are materially different to the overtime provisions for casuals in the underpinning Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). In the Agreement overtime is only payable if an employee works longer than 10 hours in one day. Under the Award overtime is payable if an employee works longer than 10 hours in one day or works more than 38 hours in a week or 76 hours in a fortnight or works outside the span of hours for casual employees.
The difference between the two provisions is intentional and the Employer says it needs to have greater flexibility in its overtime arrangements because “the clients drive the relationship with [the Employer] and in particular the carer, not the other way around as would be expected in normal circumstances.”
The Employer provided detailed written submissions about its need for flexibility in the market in which it operates and provided an example of “the most likely scenario that will impact employees”, being a scenario where a casual carer works five evenings per week from 5:00pm to 11:30pm and then a client requests that the carer work an additional three sleepovers. In this scenario the carer’s total hours for the week are 51.5. The Employer’s analysis is attached to this decision (Annexure A).
By the figures provided by the Employer the carer would receive $1,657.26 for the week under the Award and $1,956.67 under the Agreement.
I do not need to provide a wholesale analysis of why I do not think the Employer’s calculations are correct. In short the Employer’s comparison contained a second material variable, being a provision in the Agreement that if an employee works for more than 4 hours of the sleepover (which is assumed for each and every sleepover in the Employer’s scenario) then they receive 8 hours pay under the Agreement but not the Award. The calculation assumes that the carer works exactly 4 hours (by attributing 4 hours of overtime payments to the Award calculation and no more).
The Employer’s scenario sees the casual employee working from 5:00pm until 7:30am (13.5hrs plus a 1 hour break) including working at least 4 hours of the 8 hour sleepover period. In the calculation the casual is said to receive 5.5 hours ordinary pay with an afternoon shift loading (12.5%), plus 8 hours ordinary pay with a night shift loading (15%) plus a sleepover allowance ($74.80). Because the carer has only worked 9.5 hours for the shift, no overtime is said to be payable under the Agreement at all.
Even if this scenario is “typical”, the assumption that the carer works exactly 4 hours during the sleepover seems unsound given the apparent variability of clients’ needs. The assumption is necessary for the Employer because if the casual works more than 4.5 hours of the sleepover the comparison will be worse (because they will have worked 5.5 hours on their normal evening shift and therefore more than 10 hours for the total shift and would be entitled to overtime).
The Agreement provides that where a carer works “more than four (4) hours in a single sleepover then the sleepover allowance will be replaced with the complete shift being paid (8 hours) at the hourly night rate” (clause 17.4). This means the inclusion of the sleepover allowance in the Employer’s comparison is wrong because it has been “replaced” by the 8-hour payment. Moreover, if the carer was to work exactly 4 hours during the sleepover they would not receive the 8-hour payment under the Agreement because they have not worked “more than” 4 hours (but would receive the sleepover allowance).
For exactly 4 hours worked carers would receive the sleepover allowance and payment for only 4 hours “at the hourly night rate” (clause 17.4). The Employer’s calculation would need to be reduced by 4 hours pay (at $28.99 plus 15% = $133.35). The comparison then between the Agreement and the Award is $1,823.32 compared to $1,657.26 (a differential in favour of the Agreement of $166.06 for the shift).
However the casual employee is not better off overall across the 51.5 working hours of the week because under the Award each hour worked over 38 for the week must be paid at overtime rates.
Even if one or even three long overnight shifts are individually more beneficial, once the employee has worked 38 hours the Agreement falls behind.
There are at least two more factors to consider. Firstly if less than 4 hours is worked on a sleepover then the award provides for payment for the time worked at overtime rates and the Agreement provides for payment at ordinary night shift rates. This is likely to be less beneficial depending on the number of hours actually worked. Secondly, because under the Award work performed on sleepover is at overtime rates, it maybe that some of those hours would be counted as overtime hours instead of ordinary hours – but that is not what the Employer intends.
I also note two other matters regarding overtime and sleepovers: the written material given to employees about the agreement prior to the vote does not refer to the altered overtime arrangements for casuals – it merely says:
“Overtime
Time off in lieu removed, extra time worked paid at overtime rates.”
Similarly the written material does not refer to the different treatment of hours worked during sleepovers, particularly when less than 4 hours is worked and overtime rates are not applied. The material merely says:
“Changes to Allowances
· New Broken Shift provisions with allowances for Broken Shifts where rostered
· Enhanced Sleepover Provisions and Allowances”
In my view neither explanation is satisfactory but I do not need to finally determine that matter.
I have dealt with the Employer’s “typical” scenario in detail because I have assumed it to be the high point of the Employer’s argument. I remain concerned that casuals who work more than 38 hours per week generally are not better off overall because of the alteration of the overtime conditions between the Award and the Agreement. The Employer’s scenario does not dissuade me from that view.
Moreover the Employer was offered the opportunity to provide an undertaking to replicate the overtime provisions for casuals from the Award but declined to do so.
Because I am not satisfied that employees will be better off overall under the Agreement I must dismiss the application.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR743647>
Annexure A
Parameters for Casual BOOT Test
The Just Better Care Eastern Suburbs Group Enterprise Agreement contains a classification structure that essentially aligns with the classification structure in the SCHADS Award but stops at Level 4 rather than continue to Level 5 as outlined in the Award.
One of the main differences between the Agreement and the Award is that the agreement includes 3 pay points for classifications above level 3.
In both the Agreement and the Award Level 1 is essentially an entry level. Just Better Care Eastern Suburbs Group employs 3 employees at this level. At this level overtime would be very rare as the employees are essentially still learning and would not have achieved the level of competence to be requested to work overtime in excess of the parameters of either 38 hours in a week or 76 hours in a fortnight
In putting the following example together, we have translated all current staff of Just Better Care Eastern Suburbs Group to the classifications in the proposed Agreement.
The majority of employees covered by the Agreement are at Level 2 or 3, with 16 at Level 2 Pay Point 1, 36 at Level 2 Pay Point 2 and 12 at Level 3 Pay Point 1 and 3 at Level 3 Pay Point 2.
Level 4 was adopted in the Agreement to provide for future career opportunities for employees and to encourage enhanced employee engagement. There are no employees currently working at level 4 in the Just Better Care Eastern Suburbs Group.
For this exercise we have tried to identify the most likely scenario that would trigger overtime in excess of either 38 hours in a week or 76 hours in a fortnight.
Scenario
Mary is engaged as a Home Care Team Member Level 2 Pay Point 1.
She currently supports a NDIS client working Monday to Friday from 5.00pm to 11.30pm, a total 27.5 hours per week excluding unpaid meal breaks. The client has requested that Mary support them overnight and has asked that Mary sleepover for three nights during the week on a regular basis, Monday, Tuesday and Wednesday as the client has a family members stay with them on Thursday and Friday nights plus over the weekend. Mary has agreed and she is happy to do this.
Just Better Care Eastern Suburbs Group enter into a formal agreement with Mary to provide this service and Mary’s casual hours are increased to deal with the Sleepover.
Under the Sleepover provisions of the Agreement, Mary is engaged for 8 Hours on Sleepover, paid a sleepover allowance and paid overtime with a minimum of 1 hour for every time she is up providing physical support. This is the same as in the Award. However, in the Agreement once 4 hours up time is reached the provision changes to 8 hours pay at the night rate.
As the client has a number of physical and behavioural challenges Mary is expected to provide up time services to the client for more than 4 hours in all 3 sleepovers. Because of this, Mary’s sleepover is in effect 8 hours per night. This results in Mary’s hours for that week being increased by a further 24 hours. This added on to her afternoon shift hours increases her total hours to 51.5 hours per week.
BOOT Test Comparison on Example
If employed under the Award, Mary would be on a base rate at Level 2 Pay Point 1 of $23.19 per hour or a casual rate of $28.99 per hour.
If Mary was at Pay Point 2, then her rates under the Award would be $23.35 base rate or $29.19 for casual.
Under the proposed Agreement at Level 2 Pay Point 1, Mary would be on a base rate of $24.10 per hour or a casual rate of $30.13 per hour.
If Mary was at Pay Point 2 under the Agreement her base rate would be $24.90 or $31.13 as a casual.
If she was on Pay Point 3 under the Agreement her base rate would be $25.70 or $32.13 as a casual.
Mary’s normal arrangements with the client equates to 27.5 hours per week. As afternoon penalties apply (irrespective of whether she is on the Award or the Agreement) to all existing hours her actual pay would be as follows:
Example
Award - normal shift
27.5 hours X $28.99 plus 12.5% afternoon shift penalty = $896.88 for week
Sleepover Provisions
8 hour continuous shift (as specified in the Award)
Using the example of 4 hours awake time during the sleepover Mary would be entitled to 4 hours pay at overtime rates for up time.
Overtime = time and a half for the for the first 2 hours double time thereafter.
Sleepover Allowance $50.53
Calculation
2 hours overtime at $28.99 multiplied by 1.5 = $86.97
2 hours overtime at $28.99 multiplied by 2 = $115.96
Sleepover allowance = $50.53
Total Payment per Sleepover = $253.46
Total Sleepover payments for week = $253.46 X 3 = $760.38
Normal shift plus Sleepover Payments for week = $1,657.26
Agreement - normal shift
27.5 hours X $30.13 plus 12.5% afternoon shift penalty = $932.15
Sleepover Provisions
8 hours continuous shift for 3 days
Up time 4 hours therefore paid 8 hours at night rate
Sleepover allowance = $74.80 per shift
Calculation
8 hours pay at $28.99 plus night rate allowance at 15% = $266.71
Sleepover allowance = $74.80
Total Payment for Sleepover = $341.51
Total Sleepover payments for week = $341.51 X 3 = $1024.52
Normal shift plus Sleepover Payments for week = $1,956.67
As can be seen from the above calculations Mary is Better Off Overall despite being effectively at work for more than 38 hours in a week. What we have tried to do in this example is to provide the Commission with the most likely scenario that will impact employees at Just Better Care Eastern Suburbs Group for consideration.
It is difficult to cover all possible scenarios as there are a number of variables that come into play. For example, what happens if the up time on Sleepover is less than or more than 4 hours? What happens if there are less or more Sleepovers in a week? What happens if the client wants Mary to start two hours early on their normal shift on one or two days?
As this example has been based upon the first Pay Point in Level 2, it should be noted that the higher if Mary was at a higher Pay Point (particularly Pay Point 3) the differential between the Award and the Agreement in the example provided is even greater.
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