Relationships Australia South Australia Ltd

[2019] FWCA 6419

[2019] FWCA 6419

FAIR WORK COMMISSION

DECISION

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

Relationships Australia South Australia Ltd
(AG2019/2866)

RELATIONSHIPS AUSTRALIA SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 16 SEPTEMBER 2019

Application for approval of the Relationships Australia South Australia Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Relationships Australia South Australia Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Relationships Australia South Australia Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 August 2019.

[3] On 28 August 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 September 2019. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  That annual leave shall be provided in accordance with the NES, as 10 days per year.

•  That trainees will be paid in accordance with the Salary Rates found in clause 50, and at Grade 1 Level 1 at a minimum.

•  In relation to broken shifts:

•  They will be defined as a shift worked that includes one or more breaks (other than a meal break);

•  Span must not exceed 12 hours. Work in excess of 12 hours will be paid at overtime rates;

•  Employees will be entitled to at least 10 hours rest between broken shifts;

•  Any penalties applicable to the broken shift will be determined by the finishing time of the final part of the broken shift.

•  Employees required to undertake work during a ‘sleep over’ period will receive either TOIL or overtime for the period of work during the sleep over, with a minimum credit of at least 1 hour.

•  Employees undertaking excursions shall be paid for their ordinary hours of work with any excess being paid at overtime or accrue TOIL.

•  A revised clause in relation to consultation with employees with annual leave balances exceeding 4 weeks.

•  The Applicant will not provide ‘rostered home care services’.

•  A revised travel allowance of $0.78 per kilometre.

•  TOIL shall accrue in fifteen minute blocks, rounded up to the nearest fifteen minutes.

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

[6] In relation to clause 10 of the undertaking, which provides a travel allowance, the Australian Municipal, Administrative, Clerical and Services Union (ASU) wished for it to be noted that the Award provides this same allowance, but it is indexed to the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0). As clause 10 is static for the life of the Agreement, there is a potential that the Award allowance may exceed the Agreement at some point in the future, or indeed, vice versa.

[7] The ASU concede that clause 10 satisfies the BOOT for the purposes of the Award as it currently sits, they did not wish to press this issue further other than to note their dissatisfaction that the Agreement does not provide indexation. It should be noted that the Commission is required to conduct the BOOT at ‘test time’, it is not able, or required, to speculate into the future.

[8] 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.

[9] The 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. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[10] 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.

[11] 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 15 September 2023.

COMMISSIONER

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