Sexual Health Information Networking & Education SA Inc T/A Shine SA

[2019] FWCA 8404

[2019] FWCA 8404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sexual Health Information Networking & Education SA Inc T/A Shine SA
(AG2019/4545)

SHINE SA LIMITED AND AUSTRALIAN SERVICES UNION SA & NT BRANCH (ASU) ADMINISTRATIVE ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 11 DECEMBER 2019

Application for approval of the SHINE SA Limited and Australian Services Union SA & NT Branch (ASU) Administrative Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SHINE SA Limited and Australian Services Union SA & NT Branch (ASU) Administrative Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sexual Health Information Networking & Education SA Inc T/A Shine SA. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 December 2019.

[3] On 10 December 2019, I corresponded with the parties and sought clarification about the shiftworker provision in the Agreement and invited the Applicant to address the matter including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 December 2019. The undertaking states that the definition of a shiftworker contained in clause 23.1.2(b) of the Agreement shall be for the purposes of the National Employment Standards.

[5] In addition, I note that clause 20.2(c) of the Agreement provides that instead of payment for overtime, an employee who works overtime may elect to take time off in lieu (TOIL) on a time basis at a time agreed with the Manager. Clause 28.2 of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) adds that if time off for overtime that has been worked is not taken within the period of 3 months, the employer must pay the employee the overtime, at the overtime rate applicable to the overtime when worked. However, this is remedied by clause 5.2 of the Agreement which states that the Agreement is read in conjunction with the Award other than where the Agreement is inconsistent. In relation to TOIL, the Agreement is silent on payment of TOIL that is not taken and thus the Award provision will apply.

[6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[7] 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.

[8] The Australian Municipal, Administrative, Clerical and Services Union, 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) of the Act I note that the Agreement covers this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 10 December 2023.

COMMISSIONER

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