RSL Care RDNS Limited T/A Bolton Clarke Allity

[2022] FWCA 1798

[2022] FWCA 1798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RSL Care RDNS Limited T/A Bolton Clarke Allity

(AG2022/1521)

Bolton Clarke (Allity) Enterprise Agreement (South Australia) 2022

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 1 JUNE 2022

Application for approval of the Bolton Clarke (Allity) Enterprise Agreement (South Australia) 2022

1. An application has been made for approval of an enterprise agreement known as the Bolton Clarke (Allity) Enterprise Agreement (South Australia) 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by RSL Care RDNS Limited T/A Bolton Clarke Allity (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 25 May 2022 and was determined on the papers.

1. It is noted that clause 13.1(a) of the Agreement states that if an employee who is at least 18 years old does not give the required notice, the employer may deduct from wages due to the employee on termination. Clause 32 of the Agreement states that deductions can be made from wages in advance, additional wages or entitlements in error and leave granted in advance. Sections 324-326 of the Act deal with permitted deductions in enterprise agreements. To the extent that clauses 13.1(a) and 32 are inconsistent with ss324-326 of the Act, they will have no effect.

1. The Applicant has submitted an undertaking in the required form dated 31 May 2022. The undertaking deals with the following topics:

·   The minimum period of engagement for a casual Driver under the Agreement is three hours.

·   The overtime provisions in clause 19 of the Passenger Vehicle Transportation Award 2020 (the Passenger Vehicle Award) will apply to all Drivers employed by the company.

·   Drivers employed by the company, when working on a public holiday, will be entitled to the public holiday penalty rates as prescribed by clause 20.1 of the Passenger Vehicle Award.

·   In the event that Drivers are entitled to a higher rate of shift penalties in clause 20.1 of the Passenger Vehicle Award than they would have received under the provisions of the Agreement, for a particular shift work arrangement, they will be paid the higher penalties prescribed in the Award.

1. 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 did not express any view on the undertaking.

1. 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.

1. The United Workers’ Union (UWU) and the Australian Nursing and Midwifery Federation (ANMF), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 July 2023.

COMMISSIONER

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