Lutheran Church of Australia, Queensland District T/A Lutheran Services

[2024] FWCA 4273

[2024] FWCA 4273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lutheran Church of Australia, Queensland District T/A Lutheran Services

(AG2024/3838)

LUTHERAN SERVICES ENTERPRISE AGREEMENT 2024

Aged care industry
COMMISSIONER ALLISON	MELBOURNE, 4 DECEMBER 2024

Application for approval of the Lutheran Services Enterprise Agreement 2024

1. Lutheran Church of Australia, Queensland District T/A Lutheran Services (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Lutheran Services Enterprise Agreement 2024 (the Agreement).

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU), The Australian Workers’ Union (AWU), the United Workers’ Union (UWU), the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) being bargaining representatives for the agreement have each given notice under s.183 of the Act that they want the agreement to cover them. I note that the Agreement covers the ASU, the AWU, the UWU, the ANMF and the HSU.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Lutheran Services (Qld) Enterprise Agreement 2023” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error. 
   
   

2. The rate of pay for a Direct Care Support Worker Level 1.1 (Certificate 3 Qualified) is $31.01 per hour. The equivalent pay for a Direct Care Worker Level 4 under the Award is $31.24 per hour. The Employer has provided an undertaking to resolve this issue.

1. Clause 4.4 (b) of the Agreement provides that employees engaged under the aged care, nurses, health professionals and home care stream are entitled to a 30-minute break when working a shift that is more than 6 hours. The respective awards at clause 24.1 (a) of the Aged Care Award 2010 (Aged Care Award), clause 14.1 (a) of the Nurses Award 2020 (Nurses Award), clause 15.1 (a) of the Health Professionals and Support Services Award 2020 (Health Award) and clause 27.1 (a) of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) provide for an unpaid meal break for shifts in excess of 5 hours. The Employer has provided an undertaking to resolve this issue.
   
   

2. Clause 3.3 of the proposed Agreement sets out provisions where an employee is to be paid higher duties allowances. The Agreement provides for an entitlement for employees to receive the higher duties payment for some employees after working in such duties for more than 2 hours. This is a stricter requirement than compared clause 27 of the Aged care Award, clause 18 of the Health Award and clause 30 of the SCHADS Award. The Employer has provided an undertaking to resolve this issue.

1. Schedule 1 of the Agreement contains several allowances at reduced rates from their relevant Awards. The proposed agreement also omits a number of allowances which are provided for under the relevant modern awards. The Employer has provided an undertaking to resolve this issue.
   
   

2. Clause 3.9 of the Agreement provides that Schedule E to the Miscellaneous Award 2020 (Miscellaneous Award) sets out minimum wage rates and other conditions for employees undertaking traineeships. However, noting clauses 3.5(b) and 3.5(c) of the Agreement, I am satisfied that trainees will be paid at least 2% above the Miscellaneous Award and will therefore be better off overall for the purposes of s. 193 of the Act.
   
   

3. Clause 4.6 (b) of the Agreement provides that the number of hours employees are entitled to take off in lieu of overtime is the same as the number of overtime hours worked. Clause 19.3 (b) of the Nurses Award provides that the period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made. The Employer has provided an undertaking to resolve this issue.

1. Clause 13.4 (c) of the Nurses award provides that if, on the instruction of the employer, an employee resumes or continues to work without having had 10 consecutive hours off duty, or 8 hours as agreed, they will be paid at the rate of 200% of the minimum hourly rate applicable to their classification and pay point (or 200% of the casual hourly rate in the case of a casual employee) until released from duty for such period. Clause 4.2 (j) of the Agreement sets out provisions regarding 10 hour breaks however, does not provide for this additional rate increase as provided under the Award. The Employer has provided an undertaking to resolve this issue.

1. Clause 22 of the Aged Care Award provides for a minimum engagement of 4 hours for full-time employees. The Agreement is silent in relation to full-time minimum engagement. The Employer has provided an undertaking to resolve this issue.

1. The ANMF raised the following further issues in its Form F18 about which the Employer has also provided written undertakings:

   ·  Clause 4.9 of the Agreement was ambiguous as to whether shift penalties applied to Day Workers and Shift Workers. The Employer has provided an undertaking to resolve this issue.

·  The definition of “Afternoon Shift” for Aged Care workers did not cover the 5pm – 10pm period. The Employer has provided an undertaking that the definition of Afternoon Shift for Aged Care Employees in clause 10 of the Agreement means a shift which commences at or after 1pm and where the greater number of ordinary hours for that shift fall between 1pm and 10pm.

1. 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. The undertakings are taken to be a term of the agreement. 

1. Subject to the undertakings referred to above, 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. 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2024, notwithstanding the date specified in clause 1.4(a) of the Agreement. The nominal expiry date of the Agreement is 10 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A