Orana Incorporated Limited

[2019] FWCA 550

[2019] FWCA 550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Orana Incorporated Limited
(AG2018/5414)

ORANA AUSTRALIA LIMITED AND UNITED VOICE ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2019

Application for approval of the Orana Australia Limited and United Voice Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Orana Australia Limited and United Voice Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Orana Incorporated Limited. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 January 2019.

[3] On 17 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 29 January 2019. The undertaking deals with the following topics:

•  Clause 7.9.4 of the Agreement, which relates to excessive leave accrual: request by staff member for leave, is amended as follows:

“A staff member is not entitled to request by a notice under clause 7.9.3(a) more than four (4) weeks’ paid annual leave (or five (5) weeks’ paid annual leave for a shiftworker, as defined by clause 7.2) in any period of 12 months.”

•  The Employer undertakes that it does not or has not employed Home Care workers, and that in the event that a Home Care worker is employed in the future, they will be paid in accordance with the Award.

•  Clause 6.6 of the Agreement, which relates to broken shifts, is amended as follows:

“This clause only applies to social and community services staff when undertaking disability services work and home care staff.

•  Clause 5.4.7 of the Agreement, which relates to clothing and equipment, is expanded to include the following:

“Staff required by the employer to wear uniforms will be supplied with an adequate number of uniforms appropriate to the occupation free of cost to staff. Such items are to remain the property of the employer and be laundered and maintained by the staff member free of cost to the staff member.

Instead of the provision of such uniforms, the employer may, by agreement with thestaff member, pay such staff member a uniform allowance at the rate of $1.23 per shift or part thereof on duty or $6.24 per week, whichever is the lesser amount.Where such staff member's uniforms are not laundered by or at the expense of the employer, the staff member will be paid a laundry allowance of $0.32 per shift or part thereof on duty or $1.49 per week, whichever is the lesser amount.

The uniform allowance, but not the laundry allowance, will be paid during all absences on paid leave, except absences on long service leave and absence on personal/carer's leave beyond 21 days. Where, prior to the taking of leave, a staff member was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave will be the average of the allowance paid during the four weeks immediately preceding the taking of leave.

Where an employer requires a staff member to wear rubber gloves, special clothing or where safety equipment is required for the work performed by a staff member, the employer must reimburse the staff member for the cost of purchasing such special clothing or safety equipment, except where such clothing or equipment is provided by the employer.

The Clothing and equipment allowance will be increased in accordance with the award.”

•  Clause 5.4.1 of the Agreement, which relates to travelling, is replaced in its entirety with:

“Travelling, Transport and Fares

(a) Where a staff member is required and authorised by their employer to use their motor vehicle in the course of their duties, the staff member is entitled to be reimbursed at the rate of $0.78 per kilometre.

(b) When a staff member is involved in travelling on duty, if the employer cannot provide the appropriate transport, all reasonably incurred expenses in respect to fares, meals and accommodation will be met by the employer on production of receipted account(s) or other evidence acceptable to the employer.

(c) Provided that the staff member will not be entitled to reimbursement for expenses referred to in clause 5.4.1(b) which exceed the mode of transport, meals or the standard of accommodation agreed with the employer for these purposes.

(d) A staff member required to stay away from home overnight will be reimbursed the cost of reasonable accommodation and meals. Reasonable proof of costs so incurred is to be provided to the employer by the staff member.

(e) The travelling, transport and fares allowance will be increased in accordance with the award.”

•  Clause 5.4.6 in the Agreement, which relates to meal allowances, will be amended as follows:

“(a) A staff member will be supplied with an adequate meal where an employer has adequate cooking and dining facilities or be paid a meal allowance of $12.88 in addition to any overtime payment as follows:

(i) when required to work more than one hour after the usual finishing hour of work or, in the case of shiftworkers, when the overtime work on any shift exceeds one hour; and

(ii) provided that where such overtime work exceeds four hours a further meal allowance of $12.88 will be paid.

(b) Clause 5.4.6(a) will not apply when a staff member could reasonably return home for a meal within the meal break.

(c) On request, meal allowance will be paid on the same day as overtime is worked.

(d) The meal allowance will be increased in accordance with the award.”

•  Clause 6.11 of the Agreement, which relates to passive duty/sleepovers, will be amended as follows:

“6.11.1 A sleepover means when the employer requires a staff member to sleep overnight at premises where the client for whom the employee is responsible is located (including respite care) and is not a 24 hour care shift or excursion.

6.11.2 A staff member may refuse a sleepover with seven days’ notice but only with reasonable cause.

6.11.3 The span for a sleepover will be a continuous period of eight hours. Staff will be provided with a separate room with a bed, use of appropriate facilities (including staff facilities where these exist) and free board and lodging for each night when the staff member sleeps over.

6.11.4 The staff member will be entitled to a sleepover allowance of 4.9% of the standard rate for each night on which they sleep over.

6.11.5 In the event of the staff member on sleepover being required to perform work during the sleepover period, the staff member will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.

6.11.6 An employer may roster a staff member to perform work immediately before and/or immediately after the sleepover period, but must roster the staff member or pay the staff member for at least four hours’ work for at least one of these periods of work. The payment prescribed by clause 6.11.4 will be in addition to the minimum payment prescribed in this subclause.”

•  Clause 4.4.5 of the Agreement, which relates to casual employment, is amended as follows:

“Casual staff members will be paid the following minimum number of hours, at the appropriate rate, for each engagement:

(a) social and community services staff members except when undertaking disability services work—3 hours;

(b) all other staff members—2 hours.”

•  The Employer undertakes to pay all employees covered by the Agreement a “one-off” bonus of $500.00 based on a full-time hours of 38 hours per week and, for other than full-time employees, on a pro rata basis proportional to the usual hours worked.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] “United Voice”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 7 February 2022.

COMMISSIONER

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