Relationships Australia (NSW) Limited

[2024] FWCA 3981

[2024] FWCA 3981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Relationships Australia (NSW) Limited

(AG2024/3832)

RELATIONSHIPS AUSTRALIA (NSW) ENTERPRISE AGREEMENT 2024

Social community services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 14 NOVEMBER 2024

Application for approval of the Relationships Australia (NSW) Enterprise Agreement 2024

Introduction

1. Relationships Australia (NSW) Limited (the Employer) has made an application for approval of an enterprise agreement known as the Relationships Australia (NSW) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Social, Community Home Care and Disability Services Industry Award 2010 (SCHADS Award).

Casual Employees Entitled to Vote

1. Ninety-seven casual employees (out of 381 employees) were identified by the Employer as eligible to participate in the vote about the Agreement. The Employer provided submissions that it made an error in the F17 Declaration provided to the Commission and that 100 casual employees were employed during the access period and were entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,[1] the requirement in s.181(1) of the Act has been met.

1. Further, I consider it appropriate in the circumstances to allow a correction of a document  relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notice of Employee Representational Rights (NERR)

1. The NERR referred to the Agreement as ‘Relationships Australia NSW Enterprise Agreement 2013’ rather than ‘Relationships Australia (NSW) Enterprise Agreement 2024.’ The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[2] that this matter constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Shiftworker Definition

1. The Agreement does not appear to provide a sufficient shiftworker definition. The SCHADS Award contains a definition of a shiftworker in clause 31.2. This raises the issue of non-compliance with s.196 of the Act. The Employer provided an undertaking to address this issue.

Compassionate Leave

1. The entitlement to compassionate leave provided by clause 41 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household pursuant to s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as pe pursuant to s.105(1)(c) of the Act. The Employer provided an undertaking to address this issue.

Time off Instead of Payment for Overtime

1. Clause 29.3 of the Agreement refers to Time off in Lieu (TOIL). This provision, however, does not contain all the TOIL safeguards as provided by clause 28.2 in the SCHADS Award. The Employer provided undertakings to address this issue.

Better off Overall Test (BOOT) Issues

1. The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the SCHADS Award:

1. Clause 14 of the Agreement states that the Employer may pay an annual salary. It is unclear whether this will be in satisfaction of wages, allowances, higher duties, hours of work, overtime, public holiday penalties and annual leave loading entitlements. If employees are paid an annualised salary, the reconciliation mechanism is insufficient when considering the protections in SDAEA v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery.[3]

2. Clause 19.4.1 of the Agreement provides that in the case of casual employees, overtime payments shall be in addition to the 30% casual loading. The overtime payment will be calculated on the employee’s minimum hourly rate (exclusive of the casual loading). The Commission notes that the casual loading appears to be paid on a substitution basis whereas the SCHADS Award appears to be cumulative.

3. Clause 19 of the Agreement provides that overtime performed from Monday to Friday will be paid at the rate of time and a half. In contrast, for full-time employees, clause 28.1(a) of the SCHADS Award provides for overtime at the rate of 150% for the first 3 hours for social and community services and crisis accommodation employees from Monday to Saturday and 200% thereafter. For part-time and casual employees, clause 28.1(b) of the SCHADS Award provides for overtime at the rate of 150% for the first 2 hours and 200% thereafter.

1. The Agreement does not appear to provide for shift penalties, whereas clause 29 of the SCHADS Award, specifies an afternoon shift (finishing between 8 pm and midnight) with an allowance of 112.5% and a night shift (finishing after midnight or starting before 6 am) with an allowance of 115%.

1. The Agreement does not contain any provisions relating to rest breaks between rostered work, while the SCHADS Award includes such provisions in clause 25.4.

2. The Agreement does not provide for rest periods following overtime, whereas clause 28.3 of the SCHADS Award addresses this.

3. The Agreement is silent in relation to public holiday penalty rates during ordinary hours. Clause 34.2 of the SCHADS Award provides a 250% penalty during ordinary hours of work that fall on a public holiday.

Section 190 Undertakings

1. The Employer provided written undertakings to address the above BOOT and other issues. A copy of the undertakings is attached in Schedule E. 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ASU.
   

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2024. The nominal expiry date of the Agreement is 21 November 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 7599

[2] [2019] FWCFB 318.

[3] [2017] FWCFB1664.

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