Seventh-Day Adventist Aged Care (South Queensland) Ltd

[2011] FWA 5838

[2011] FWA 5838

FAIR WORK AUSTRALIA

DECISION

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

Seventh-Day Adventist Aged Care (South Queensland) Ltd
(AG2011/1789)

ADVENTIST AGED CARE SUPPORT AND ADMINISTRATION STAFF ENTERPRISE AGREEMENT 2011

COMMISSIONER HAMPTON ADELAIDE, 30 AUGUST 2011

Application for approval of an enterprise agreement - additional annual leave for shiftworkers - earlier decision [2011] FWA 5013 - agreement not approvable in present terms - no undertakings provided to deal with statutory approval concern - application dismissed.

[1] This matter concerns an application for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Seventh-Day Adventist Aged Care (South Queensland) Pty Ltd (the employer) and the Agreement is the Adventist Aged Care Support and Administration Staff Enterprise Agreement 2011.

[2] In a decision issued on 5 August 2011, 1 I considered the import of s.196 of the Act and concluded as follows:

“[32] In circumstances where there are employees who fall within the scope of s.196(1) of the Act, Fair Work Australia must pursuant to s.196(2) be satisfied that the enterprise agreement also defines or treats those employees as being shiftworkers for the purposes of the relevant NES. Unless this is so, the agreement will not meet the relevant approval requirement called up by s.187(4) of the Act. I would add that a provision in an enterprise agreement that also included other employees within the definition of shiftworker for present purposes, or implied the relevant definition by providing the equivalent of the award-based NES leave, would appear to be permissible under s.196 of the Act.

[33] In this case, there are employees who are defined by the relevant modern awards as being shiftworkers for present purposes who fall outside of the “shiftworker” definition in clause 25.1 of the Agreement in relation to the additional week of annual leave. As a result, the Agreement does not meet the requirements of the Act and the application cannot be granted in its present form.”

[3] Having pointed out that the deficiency could potentially be addressed by way of an appropriate undertaking pursuant to s.190 of the Act, I adjourned the application on the following basis:

“[39] Given the consequences of this decision, I will however provide an opportunity for the parties to reflect upon the options that might exist. In the event that the employer is unwilling or unable to give an undertaking to address the requirements of the Act, I will be obliged to dismiss the application.

[40] The employer is to confirm its position with Fair Work Australia and the employee bargaining representatives within 14 days of this decision. In the event that the employer intends to make an undertaking, I will convene a further hearing to enable all parties to be heard on that issue as is consistent with the requirements of s.190(4) of the Act.

[41] In the event that the application is subsequently discontinued or dismissed, it may also be appropriate for Fair Work Australia to assist the parties to negotiate through the consequences of that action. The employer or any of the (other) bargaining representatives may make application pursuant to s.240 of the Act to that end.”

[4] Fair Work Australia has now been advised by the employer 2 that it acknowledges the earlier decision and its requirements, but as foreshadowed in that decision,3 it is not in a position to provide an undertaking that could be accepted by the Tribunal in light of s.190(3)(a) of the Act and which would meet the approval concerns. This was said to be due primarily to cost considerations.

[5] In light of the earlier findings, the present Agreement does not meet the approval requirements of the Act. In the absence of an undertaking that might address the statutory approval concerns and given that no alternatives have been raised by any of the parties, 4 the application must be dismissed. I so order.

[6] I would reiterate my comments as set out in par [41] of the original decision above and commend that course of action to the parties.

COMMISSIONER

 1   [2011] FWA 5103.

 2   Correspondence from Mr Longwill, of McCullough and Robertson, Solicitors for the employer, was dated 22 August 2011 but received by Fair Work Australia on 29 August 2011.

 3   [2011] FWA 5103 at par [38].

 4   United Voice and the Australian Workers’ Union of Employees, Queensland are employee bargaining representatives for the Agreement and have been advised of the employer’s position on the giving of an undertaking at some time prior to 22 August 2011.

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