Seventh-Day Adventist Aged Care (Victoria) Ltd T/A Adventcare

[2024] FWCA 4235

[2024] FWCA 4235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Seventh-Day Adventist Aged Care (Victoria) Ltd T/A Adventcare

(AG2024/3337)

SEVENTH-DAY ADVENTIST AGED CARE (VICTORIA) PTY LTD (TRADING AS ADVENTCARE), ANMF AND HWU ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 3 DECEMBER 2024

Application for approval of the Seventh-day Adventist Aged Care (Victoria) Pty Ltd (trading as AdventCare), ANMF and HWU Enterprise Agreement 2024

1. Seventh-Day Adventist Aged Care (Victoria) Ltd T/A Adventcare (the Employer) has made an application, pursuant to s. 185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Seventh-day Adventist Aged Care (Victoria) Pty Ltd (trading as AdventCare), ANMF and HWU Enterprise Agreement 2024 (the Agreement).

1. The Australian Nursing and Midwifery Federation (AMNF) and the Health Services Union Victoria No 1 Branch, trading as the Health Workers Union (HWU), 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) I note that the Agreement covers the AMNF and the HWU.

1. The following provisions may be inconsistent with the National Employment Standards (NES):  

   • Clause 55.5(f), relating to personal leave to care for an immediate family or household member, states that the employee must give notice prior to the absence of their intention to take leave, and where this is not practicable, clause 55.5 (g) follows that they ‘must notify the employer by telephone of such absence at the first opportunity on the day of absence.’ This is a stricter notice requirement than provided under s.107 of the Act.
      
   • Clause 37.2(b), relating to termination of employment, provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

1. However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. 

1. The Agreement does not contain a span of ordinary hours. Clause 22 of the Aged Care Award 2010 (Aged Care Award) and clause 13.1 of the Nurses Award 2020 (Nurses Award) provide for a span of hours between 6.00pm and 6.00am. The Employer has provided an undertaking that the span of ordinary hours under the Agreement will be 6.00pm to 6.00am.

1. Clause 48.1 of the Agreement provides for a 150% penalty for all weekend work. This appears to be less beneficial than the entitlement to 175% on Sunday under clause 23 of the Aged Care Award and clause 21 of the Nurses Award. The Employer has provided an undertaking to resolve this issue.

1. Clause 33 of the Agreement provides that part-time employees can work additional shifts but does not specify whether these shifts are paid as overtime. Part-time employees working additional shifts under the Awards would be entitled to overtime, in accordance with clause 25.1(b)(iii) Aged Care Award and Clause 19.1(d) Nurses Award). The Employer has provided an undertaking to resolve this issue.

1. Clause 22 of the Aged Care Award provides for a minimum engagement of 4 hours for full-time employees. Clause 28.9 of the Agreement provides for a minimum engagement of 2 hours for all employees. The Employer has provided an undertaking to resolve this issue.

1. The Agreement references broken shifts in clauses 47.3 and 48.2(b). However, broken shifts are not defined in the Agreement, and the Agreement appears to be silent in relation to an employee’s entitlements regarding broken shifts, which are provided at clause 22.8 of the Aged Care Award. The Employer has provided an undertaking that the provisions relating to broken shifts at clauses 47.2 and 48.2(b) of the Agreement will not be used.

1. Clause 51.2 of the Agreement states where an employee is required to remain available or on duty during a meal break (including that they are advised that they are unable to leave the ward/unit or facility) or is interrupted during that meal break, the employee will continue to be paid until such time as the employee takes the meal break, free from duty, or the employee’s shift ends (whichever occurs first). Clause 24.1(b) of the Aged Care Award states that employees are paid at overtime rates when asked to work during meal breaks. The Agreement is silent as to whether this payment is on standard or overtime rates. The Employer has provided an undertaking to resolve this issue.

1. Clause 47.2 of the Agreement provides a table for overtime penalties. There is no separate table for Casual employees, and the clause is silent as to whether this is calculated in substitution for, or compounding upon, casual loadings. Nurses are entitled to compounding penalties in accordance with the Opal Aged Care decision,[1] and as stipulated in clause 19.2 of the Nurses Award. The Employer has provided an undertaking to resolve this issue.

1. Some of the penalty rates for casual employees working on weekends and public holidays in clause 28.5(c) of the  are lower than the equivalent penalty in the Awards. Casuals who work these shifts in isolation may not be better off overall. In addition, some of the shift penalties in Appendix A are below the Award. Part-timers and casuals who work only a Sunday shift may not be better off overall. To address this concern the Employer has provided an undertaking that no part-time or casual employee will be engaged solely on a Sunday shift.

1. A copy of the undertakings 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2024. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 1716.

Printed by authority of the Commonwealth Government Printer

<AE526999  PR781900>