Lutheran Church of Australia South Australia and Northern Territory District Inc T/A Lutheran Community Care SA and NT

[2017] FWCA 5700

[2017] FWCA 5700

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.217—Enterprise agreement

Lutheran Church of Australia South Australia and Northern Territory District Inc T/A Lutheran Community Care SA and NT

(AG2017/5017)

Lutheran Community Care Enterprise Agreement 2017

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 2 NOVEMBER 2017

Application for variation of the Lutheran Community Care Enterprise Agreement 2017.

Summary

1. An application has been made by Lutheran Church of Australia South Australia and Northern Territory District Inc T/A Lutheran Community Care SA and NT (LCC) pursuant to s.217 of the Fair Work Act 2009 (the Act). The application seeks for the Fair Work Commission to remove an ambiguity or uncertainty in the Lutheran Community Care Enterprise Agreement 2017 (the Agreement). The Agreement is a single enterprise agreement.

1. The Agreement was approved, with undertakings, the model consultation term and the model flexibility term, by Commissioner Saunders on 21 September 2017.[1] The Agreement has operated from 28 September 2017 and has a nominal expiry date of 20 September 2021.

1. The application sought to amend:

·  Clause 1.4 – Intent: by removing the words “It shall operate to the exclusion of all other agreements and awards”

·  Clause 5.1.1.3 – Supported  Wage System: by inserting clauses 5.1.1.3 to 5.1.1.12 to enable LCC to have a supported wage system application approved by the Supported Wage Management Unit of SA

·  Clause 9 – Definition: by varying the phrase “Supported Wage Subsidy” to “Supported Wage System”

1. On 25 October 2017, A Notice of Listing was issued for hearing via telephone on 1 November 2017. LCC was required to provide a copy of the Notice of Listing, the application and the varied Agreement to all employees covered by the Agreement by no later than 5.00pm 30 October 2017. The Notice of Listing invited any employee covered by the Agreement the opportunity to attend the hearing.  

1. On 27 October 2017, the Commission received a statutory declaration of Mr Percy Henry, Business and Operations Director of LCC, stating that the documents had been provided to all employees covered by the Agreement.

1. The hearing was conducted by way of telephone conference on 1 November 2017. A sound file record of the telephone conference was kept. Mr Percy attended on behalf of LCC.

LCC’s position

1. At the commencement of the hearing, LCC withdrew the application to vary clause 1.4 of the Agreement.

1. LCC has sought to vary the Agreement so as to enable a person to be employed under the Supported Wage System. The additional clauses 5.1.1.3 to 5.1.1.12 include specific details as required by the Supported Wage Management Unit of SA who have indicated that it would not be in a position to approve a supported wage system application under the current Agreement. Clauses 5.1.1.3 to 5.1.1.12 are based on Schedule F of the Social, Community, Home Care and Disability Services Industry Award 2010.

1. Furthermore, the phrase in clause 9 “Supported Wage Subsidy” is incorrect and should be varied to “Supported Wage System” so as to remove any ambiguity or uncertainty.

Applicable legislation

1. Section 217 of the Act provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(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.”

Consideration

1. The original Agreement referred to what is commonly known as the Supported Wage System in different terms. However, the Agreement did not contain the provisions which provide the requirements and obligations under the Supported Wage System.

1. On the basis of the material before me, I agree that the current Agreement results in uncertainty arising from the absence of the enabling clauses and phrases in the Agreement that relate to the Supported Wage System. In my view it is appropriate to vary the Agreement and the application in relation to clauses 5.1.1.3 to 5.1.1.12 and 9 is granted.

1. This variation will operate from 2 November 2017.

1. A consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

[1] [2017] FWCA 4945

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