Royal Freemasons Limited

[2020] FWCA 5422

[2020] FWCA 5422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreementRoyal Freemasons Limited

(AG2020/1839)

ROYAL FREEMASONS LTD HOME CARE ENTERPRISE AGREEMENT 2020

Aged care industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 20 OCTOBER 2020

Application for approval of the Royal Freemasons Ltd Home Care Enterprise Agreement 2020.

[1] Royal Freemasons Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Royal Freemasons Ltd Home Care Enterprise Agreement 2020 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertaking 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[5] However, I consider it necessary to expand upon my reasoning regarding my satisfaction that the requirements of s 186(2) have been met. It was evident from the materials submitted that there were concerns that the Agreement did not meet the requirements set out in s 186 of the Act. This was because there were terms within the Agreement that rendered the relevant employees not better off overall. Consequently, undertakings were proffered to address the concerns raised. However, it remained that the statutory declaration accompanying the application provided that there were no terms or conditions within the Agreement that were less beneficial. Having considered the initial materials submitted in support of the Applicant’s contention that it had complied with s 180(5) of the Act, I was not so persuaded. The Applicant was provided with the opportunity to file an amended Form F17 (pursuant to s 586) and further materials in support of its contention.

[6] Extensive submissions were provided on the point, of which I have had regard. The Applicant conceded that the statutory declaration submitted as part of the application for approval of the Agreement did not disclose the less beneficial terms of the Agreement in comparison to reference instruments. This, said the Applicant, was an unintentional error and was not intended to mislead the Commission as part of its BOOT assessment. On this point I note that the amended Form F17 re-addresses the relevant questions of the Form F17 at questions 3.3 and 3.7 satisfactorily.

[7] However, the gravamen of the concerns centred on whether the Applicant had complied with s 180(5) of the Act, given the BOOT concerns regarding: (a) span of hours for home care employees; (b) the averaging of ordinary hours of work over five weeks; (c) sleepovers, specifically the allowance amount the span and the minimum engagement and payment for rostering purposes; and (d) Sunday penalties for casual employees under the Agreement. Further, BOOT concerns had been resolved in the initial response provided by the Applicant.

[8] Section 180(5) of the Act sets out that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained, and the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. Compliance with ss 180(5) and 188 of the Act, are not matters of jurisdictional fact. Satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, because, among other factors, an assessment is to be made as to whether ‘reasonable steps’ were taken by the employer. 1

[9] In order to reach the requisite state of satisfaction that s 180(5) has been complied with, the Commission is required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. 2

[10] The Applicant submitted that its explanation to the relevant employees concerning the terms of the Agreement and their effect came in the form of the written document titled ‘Home Care Enterprise Agreement EBA clause updates/changes’ (Clause Update Document). That document had, according to the Applicant, specifically addressed the updates and amendments that had been made to the predecessor agreement, 3 which had culminated in the Agreement put to the vote. There were fourteen changes made to the predecessor agreement, all of which were set out and explained in that Clause Update Document.

[11] In Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited, 4the Full Bench observed that compliance with s 180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument.5 This is particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer.

[12] Regard has been had to several factors when considering the circumstances of the employees and whether or not reasonable steps were taken by the Applicant to explain the terms of the Agreement and their effect The Agreement was made in a workplace with a history of engagement in bargaining with organisations and was in fact the product of negotiations between the Applicant and the default bargaining representatives (the Australian Nursing and Midwifery Federation and the Health Services Union). There had been a succession of enterprise agreements within that workplace since 2011 that covered the relevant employees. The terms of the Agreement were substantially similar to the terms of the predecessor agreement and can be properly construed as a ‘roll-over’ agreement save the changes made as evinced in the Agreement and the Clause Update Document.

[13] In such circumstances, I am satisfied that the Applicant took all reasonable steps to explain the terms of the Agreement and their effect. The relevant employees, having been covered by the predecessor agreement would be familiar with its terms, and those same terms, with the exception of the changes made, now find themselves in the Agreement. The changes to the terms of the Agreement have been explained. The content of that explanation adopting a focus which was entirely reasonable. While face to face meetings were not conducted, the Act does not require this. It simply directs the Commission to consider whether all reasonable steps were taken (s180 (5)). I am satisfied that they were.

[14] The Australian Nursing and Midwifery Federation (the organisation),being a bargaining representative for the Agreement, has given notice under s 183 of the Act they want the Agreement to cover them. In accordance with s 201(2) and based on the statutory declarations provided by the organisation, I note that the organisation is covered by the Agreement.

[15] The Agreement was approved on 20 October 2020 and, in accordance with s 54, will operate from 27 October 2020. The nominal expiry date of the Agreement is 20 October 2024.

DEPUTY PRESIDENT

Attachment A

 1   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.

 2 Ibid [112].

 3   Royal Freemasons Ltd and Outreach Program Enterprise Agreement 2010-2012 [2011] FWAA 768; Royal Freemasons Ltd Home Care Enterprise Agreement 2014 [2014] FWCA 5251.

 4   [2019] FWCFB 4022.

 5   Ibid.

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