Safe Work Australia

[2019] FWCA 1688

[2019] FWCA 1688

FAIR WORK COMMISSION

DECISION

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

Safe Work Australia
(AG2018/7247)

SAFE WORK AUSTRALIA ENTERPRISE AGREEMENT 2019-2022

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MARCH 2019

Application for approval of the Safe Work Australia Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Safe Work Australia Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Safe Work Australia. The Agreement is a single enterprise agreement.

[1] A notice of employee representational rights (NERR) was provided to employees on 24 August 2018 and the notice complied with the regulations. 1 On 10 December 2018, employees were provided with access to the proposed Agreement and information about the effect of the terms of the Agreement, along with a notice of the time and place and method of voting. Voting occurred in the period 18 to 20 December 2018 and a majority of those who voted approved the Agreement.2

[2] The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test (BOOT) was the Australian Public Service Enterprise Award 2015 (the Award). 3

[3] The statutory declaration noted that some of the provisions in the proposed Agreement were more beneficial than the Award or were not conferred by the Award. Less beneficial terms were also identified.

[4] The Community and Public Sector Union (CPSU) filed a statutory declaration on 24 December 2018. In doing so, the CPSU raised concerns regarding less beneficial terms that were relevant for the purpose of the Commission’s consideration of whether the Agreement satisfied the BOOT.

[5] The Agreement lodged contained errors at Clauses 54, 206, 276 and Appendix 3. On 7 March 2019, the Applicant filed amended pages of the Agreement pursuant to s.586 of the Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] In reviewing the Agreement for approval the Fair Work Commission (the Commission) identified National Employment Standards (NES) compliance and BOOT concerns. The Commission wrote to the Applicant on 4 March 2019 regarding the following issues:

1. Clauses 71 and 175 of the Agreement exclude causal employees from an entitlement to annual leave, notwithstanding clause 217 appears to provide for causal employment on a regular and systematic basis. This may be inconsistent with the decision in Workpac v Skene [2018] FCFAC 131 (Workpac).

2. Clause 64 of the Agreement provides for rates of pay “on commencement” but does not provide for rates of pay at “test time” for the purposes of the BOOT.

[7] In addition to the matters raised by the Commission, the CPSU raised the following issue on which a response from Applicant was sought:

1. Clause 227 of the Agreement which deals with an employee’s right to access part-time employment on return from maternity or parental leave was, according to the CPSU, less beneficial than clause 6.4(h) of the Award.

[8] Both the Applicant and the CPSU were requested to advise the Commission whether they sought to be formally heard to supplement their written submissions filed in relation to the above-referred issues. Both parties declined to be heard further.

Does the Agreement comply with the NES?

[9] In relation to the issue of casual employment raised by the Commission, it is relevant to re-produce the relevant clauses, that of clauses 71, 175 and 217.

[10] Clause 71 states as follows:

“Casual Employees

71. A causal employee will be paid a 25 per cent loading in addition to the hourly rate of pay applicable to their classification. The loading is in lieu of:

a) any payment in relation to any form of paid leave (except where the Employee is entitled to Long Service Leave)

b) any payment for Public Holidays on which the Employee is not rostered to work, and

c) any payment for Christmas Closedown.”

[11] Clause 175 states as follows:

“Annual Leave

175. A Full-time Employee is entitled to four weeks’ paid Annual Leave for each year of service.

…………….”

[12] Clause 217 states as follows:

“217. Employees, including Casual Employees with regular and systematic service of at least 12 months, are also covered by Parental Leave provisions of the Fair Work Act.”

[13] Casual employee is defined at Appendix 1 of the Agreement in the following terms:

“Casual Employee/s means a person engaged as a casual, and includes an APS Employee engaged for duties that are irregular or intermittent.”

[14] The Applicant variously submits that:

1) There are three types of employment possible under the Public Service Act 1999 (Public Service Act) - that of an ongoing APS employee, an employee engaged for a specified term or duration and an employee engaged on an irregular or intermittent basis (known within the APS as a casual employee).

2) In practice the Applicant does not employ any casual employees, although it concedes there is provision to do so in the future under the Agreement.

3) As a matter of law, a person engaged as an APS employee for duties that are irregular or intermittent will be a casual employee within the common law meaning.

4) All casual employees within the meaning of the proposed Agreement would be entitled to the casual loading pursuant to clause 71.

5) The Agreement was drafted on the basis of the Applicant correctly identifying whether an employee is a casual or non-casual employee, both within the common law meaning of the term “casual” and under the Public Service Act.

6) If an employee is a casual employee (including within the common law meaning of that term) they would be entitled to annual leave under the Fair Work Act 2009 and can lawfully be paid the loading under the proposed Agreement in lieu of annual leave (and other forms of leave except Long Service Leave).

7) An employee mistakenly characterised as a casual employee when they are not a casual employee within the common law meaning of the term, would be entitled to annual leave under the Act, even if that employee had already received a loading under clause 71 of the Agreement.

8) Recent amendments to Fair Work Regulations (the Regulations) allow an employer to seek to set off past casual loading payments if confronted with annual leave entitlement claims from a casual employee.

9) Workpac acknowledges that it is possible for a person to be a long term casual employee, if, when looking back; the person had been engaged on a regular and systematic basis for a sequence of periods of employment during a period of 12 months. This is the class of employee that is covered by clause 217 of the Agreement

[15] The CPSU did not support the Applicant’s submissions in relation to casual employees. The CPSU contend that it is not permissible under the Public Service Act for the Applicant to engage a casual employee for duties that are other than “irregular or intermittent.” For the Applicant to mischaracterise the engagement of a casual would be contrary to the Public Service Act. The CPSU sought an undertaking to the effect that the Applicant would only engage casual employees for “irregular or intermittent” duties.

[16] Before turning to consider the positions of the parties, I turn to the provisions of the Agreement. It is clear from clause 71 that employees engaged as casuals under the Agreement are entitled to receive a loading of 25%, paid in lieu of various other Agreement entitlements including annual leave. The term “Casual Employee” is defined at Appendix 1 as persons engaged as casuals and includes an APS employee engaged on duties that are irregular and intermittent. Use of the term “includes” infers that casuals may be engaged other than on an irregular and intermittent basis. Support for this is found at clause 217 where it makes provision for unpaid parental leave for casual employees with “regular and systematic service of at least 12 months”.

[17] It follows from the above that the Agreement allows for the engagement of casual employees on a regular and systematic basis. While the Applicant and CPSU made submissions going to both the incidence of and permissibility of the Applicant engaging casuals other than for “irregular and intermittent” duties under the Public Service Act, that is ultimately not relevant to my consideration. The fact that the Public Service Act may only allow the engagement of casuals for “irregular or intermittent” duties may give rise to an action for breach of the Public Service Act were the Applicant to act contrary to that Act. That does not, however, resolve the question of entitlement to annual leave of a casual employee that may be engaged on a regular and systematic basis.

[18] I am satisfied that the Agreement provides for a casual loading of 25% in lieu of various other Agreement entitlements including annual leave. The Agreement also allows for the engagement of casual employees for other than “irregular and intermittent” duties. Under the Agreement, casual employees engaged other than for “irregular and intermittent” duties would not be entitled to annual leave.

[19] It follows from the above that there is potential for employees engaged under the Agreement to fall within a class of employees who are not “casual employees” within the meaning of that phrase as determined by a Full Court of the Federal Court in Workpac. Furthermore, they may not be “casual employees” within the meaning of s 86 of the Act and may be entitled to annual leave under the NES.

[20] I am satisfied that clauses 75, 175 and 217 are inconsistent with the NES. However, given the NES precedence clause at clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

Does the Agreement satisfy the BOOT?

[21] The Applicant, in its submissions in response to Commission concerns, provided a spreadsheet of wage rates to be applied at test time for the purposes of the BOOT. The CPSU acknowledged those rates. I am satisfied that the rates provided by the Applicant are to be applied for the purposes of the BOOT assessment at test time.

[22] I now turn to the CPSU’s concern regarding access to part-time hours on return from maternity or parental leave. They contend that clause 227 of the Agreement, which deals with an employee’s right to access part-time employment on return from maternity or parental leave, is less beneficial than clause 6.4(h) of the Award. Clause 227 relevantly provides as follows:

“227. An employee returning from Maternity Leave or Parental Leave may access part-time hours.”

[23] By comparison, the relevant provision at clause 6.4(h) of the Award provides as follows:

“(h) Access to part-time employment

An employee returning to duty from maternity leave will, on application by the employee, be given access to part-time employment”

[24] The CPSU submit that the Award provision uses the terms “will” and “be given” to denote an explicit entitlement to part-time hours of work on return from maternity leave, whereas the Agreement uses the term “may” which denotes discretion for the Applicant to grant or deny part-time hours to an employee returning from maternity or parental leave.

[25] The Applicant in response submits that it is a difference in language only, not in substance and that it is well understood within the Applicant’s operations that clause 227 read in conjunction with clause 226 in the Agreement provides an absolute right for an employee returning from maternity and parental leave to access part-time hours of work.

[26] The difficulty with the CPSU submission is that use of the term “may” is not conditioned by a requirement that access to part-time hours is subject to discretionary approval. A plain reading of the words leads to a construction that access to part-time hours of work for an employee returning from maternity or parental leave is at the election of the employee.

[27] I do not accept the construction advanced by the CPSU and as such I am satisfied that the provision is no less beneficial than the Award. In fact, I am satisfied that it is arguably more beneficial than the Award as it extends the right to access part-time hours of work to persons returning from parental leave as well as those returning from maternity leave, whereas the right to access part-time hours under the Award is confined to only those employees returning from maternity leave.

[28] In assessing the BOOT, I have considered the more beneficial provisions including higher remuneration, generous superannuation contributions levels, flexible remuneration packaging, leave purchase arrangements, additional paid maternity leave and a range of more generous leave entitlements. Balanced against those benefits there are less beneficial provisions including increased maximum weekly ordinary hours of 37.5 hours, flex time provisions, discretionary relocation costs, absence of reunion travel and some allowances in the Award not conferred by the Agreement. I note at this point that the CPSU do not contend that the Agreement otherwise fails to satisfy the BOOT.

[29] I am satisfied that the higher remuneration and other benefits available under the Agreement are sufficient to more than compensate and offset the less beneficial elements of the Agreement. I am consequently satisfied that the Agreement passes the BOOT.

Conclusion

[30] 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.

[31] The CPSU, 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) I note that the Agreement covers the organisation.

[32] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2019. The nominal expiry date of the Agreement is 21 March 2022.

DEPUTY PRESIDENT

 1 Section 174 Fair Work Act 2009.

 2 Section 180 Fair Work Act 2009.

 3   MA000124.

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