Seasons Living Australia Pty Ltd T/A Seasons

[2023] FWCA 1778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Seasons Living Australia Pty Ltd T/A Seasons

(AG2023/1616)

SEASONS LIVING AUSTRALIA ENTERPRISE AGREEMENT 2022

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 20 JUNE 2023

Application for approval of the Seasons Living Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Seasons Living Australia Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Seasons Living Australia Pty Ltd T/A Seasons (the Applicant). The Agreement is a single enterprise agreement.

ANMF Concerns - overtime for part-time nursing staff

The Australian Nursing and Midwifery Federation (ANMF) raised a number of concerns in their Form F18. In particular, a concern was raised regarding overtime for part-time nursing staff. The ANMF submitted that clause 16.1(d) of the Agreement provides that part-time employees (including nursing employees) are only entitled to the overtime rate of pay if they work in excess of 10 hours in any given day or 152 hours averaged over a four-week period. The ANMF contended that this condition is significantly worse than the entitlement to overtime rates for part-time nurses contained in clause 19.1(d) of the Award. The ANMF submitted that the 12% above award pay rates for nursing staff are not sufficient to buy out the significantly inferior part-time overtime provisions in the Agreement.

The Applicant submitted that clause 19.1(d) of the Nurses Award provides that “all time worked by part-time employees in excess of the rostered daily ordinary full-time hours will be overtime and will be paid as prescribed in clause 19.1(a).” The Applicant submitted as per Clause 13.1(c) of the Nurses Award, ordinary hours of work for a full-time employee are 38 hours per week, 76 hours per fortnight or 152 hours over 28 days. Ordinary hours of work per day are a maximum of 10 hours. The Applicant submitted that clause 16.1(d) of the Agreement is consistent with that clause, and expressly provides that all time worked by part-time employees in excess of 10 hours in any given day or 152 hours averaged over a four week period is paid at the overtime rate. The overtime rates for part-time employees are also consistent with the rates under the Nurses Award and are applied on rates of pay which will remain 12% above the minimum rates in the Nurses Award prior to the nominal expiry date of the agreement.

I have considered the submissions from the ANMF and the Applicant, and I am satisfied the 12% figure is still high enough along with penalties and entitlements under the Agreement to ensure employees are better off overall (including part-time employees).

Conclusion

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES. I note the ANMF raised an issue regarding Annual Leave, however, I am satisfied clause 6.1 of the Agreement satisfies this issue.

I have considered all the submissions from the parties in this matter, and I am satisfied that the undertakings and the submissions from the Applicant resolve the concerns with this Agreement.

The United Workers’ Union (UWU) and ANMF both lodged a Form F18 statutory declaration giving 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 the ANMF and UWU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Seasons Living Australia Pty Ltd, trading as Seasons, applied to the Fair Work Commission for approval of the Seasons Living Australia Enterprise Agreement 2022. The dispute centred on whether the terms of the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the legislative requirements and was in the best interests of the employees covered by the agreement.

The primary legal issues before the Commission involved assessing the fairness and compliance of the proposed agreement with the Fair Work Act. This included examining whether the agreement provided a safety net of minimum entitlements, ensured procedural fairness in its creation, and whether it met the requirements for being a single, indivisible agreement. The Commission also needed to consider if the agreement provided for proper negotiation processes and if it was in the best interests of the employees.

The Fair Work Commission found that the proposed agreement met all the necessary criteria for approval. The agreement was deemed to provide a safety net of minimum entitlements, ensure procedural fairness, and be a single, indivisible agreement. The Commission was satisfied that the negotiation processes were appropriate and that the agreement was in the best interests of the employees. Consequently, the Commission approved the Seasons Living Australia Enterprise Agreement 2022, confirming its compliance with the statutory requirements and its fairness to the employees.

The Commission's final order was that the Seasons Living Australia Enterprise Agreement 2022 be approved and registered, effective from the date of the decision. This approval enabled the agreement to provide the framework for the terms and conditions of employment for the employees covered by the agreement, subject to the statutory protections and requirements outlined in the Fair Work Act.

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