Silver Chain Group Limited

[2021] FWCA 6899

[2021] FWCA 6899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Silver Chain Group Limited

(AG2021/8111)

Silver Chain Group Limited National (Non Nursing) Enterprise Agreement 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 30 NOVEMBER 2021

Application for approval of the Silver Chain Group Limited National (Non Nursing) Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Silver Chain Group Limited National (Non Nursing) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Silver Chain Group Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 November 2021.

1. On lodgement of its Application, the Applicant provided a letter to the Commission noting that there had been a typographical error in the Agreement document that was voted on by the employees in relation to the following salary pay point:

·   Schedule 1 – Salaries and Classification, 1.1 Rates of Pay – Silver Chain Group and ACNA Employees – Allied Health Professional Roles at Level 1 Pay Point 5 (effective fpp commencing on or after 1 July 2022).

1. In its letter to the Commission, the Applicant made clear that the hourly amount for the above salary pay point should read $43.83 rather than $42.83. In my view, this error does not substantially affect the operation of the Agreement, and only goes to the benefit of the employees who voted on it. As such, I propose to exercise my powers under s.586 of the Act to amend the Agreement to correct this error.

1. On 12 November 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. At the conclusion of the conference, I provided the Applicant and the Health Services Union (HSU) an opportunity to consult in order to agree upon undertakings in order to resolve some of the concerns raised by the HSU during the conference.  

1. The Applicant has submitted an undertaking in the required form dated 29 November 2021. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·   If an employee does not give the required period of notice, the employer will limit any deductions to no more than one week’s wages.

·   An agreement to vary ordinary hours under clause 7.2 will only be made with employees employed in the following roles:

·  1.1 Silver Chain – Domestic Support Roles;

·  1.1 Silver Chain – Personal Care Roles;

·  1.2 RDNS – Domestic Support Roles; and

·  1.2 RDNS – Personal Care Roles (the Selected Roles)

and will not allow for the spread of hours to extend beyond 8.00pm.

·   Where an employee employed in the Selected Roles has agreed to work ordinary hours on 11 days in a fortnight, they will receive at least eight full days off work in each 28 day cycle.

·   For the purpose of Clause 10.1 of the Agreement, the hourly rate of a casual employee is the hourly rate in Schedule 1, inclusive of the casual loading prescribed in Clause 5.3 of the Agreement.

·   Clause 24 of the Agreement, regarding Respite/Sleepover work, will only be applied to ‘Silver Chain – Personal Care Roles’ and ‘RDNS – Personal Care Roles’. When an employee performs Respite/Sleepover work, clause 25.7(c) of the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) will apply.  

·   The employer will not roster an employee to perform a Respite/Sleepover shift in accordance with clause 24.5 unless the employee would be better off when compared to the Award. Employees will be informed of the maximum number of hours they can perform without being worse off, and in the case that the time worked exceeds this amount, they will be paid the appropriate penalty rates.

·   Clauses 7.18-7.23 of the Agreement, regarding split shifts, will only be applied to employees who are employed in the Selected Roles.

·   Any time off in lieu of overtime (TOIL) which has not been taken will be paid out on termination at overtime rates.

·   Clause 23 of the Agreement, regarding higher duties, will not be applied to employees who are employed in the Selected Roles.

·   The reference to paying a Clothing Allowance in clause 21.3 of the Agreement incorporates the uniform and laundry allowances in clause 22.3(b) of the Health Professionals and Support Services Award 2020 (the HPaSS Award).

·   Employees who are paid an annualised salary who perform more overtime in a fortnight than the number of hours specified for their classification will be paid at overtime rates in accordance with clause 10.2 of the Agreement. The relevant hours of overtime for each classification are outlined in the undertakings attached to the Agreement.

·   The rates of pay for Domestic Support Roles has been increased. The revised rates are outlined in the undertakings attached to the Agreement.

·   For all part-time employees apart from those who are employed in the Selected Roles, clauses 10.2 and 10.3 of the HPaSS Award will apply in lieu of clause 5.16 of the Agreement.

·   Ordinary hours worked between midnight on Saturday and midnight on Sunday will be paid at 200% of the ordinary rate of pay for all employees who are employed in the Selected Roles.

·   Clauses 7.13-7.17 of the Agreement, regarding client cancellation, will only be applied to employees employed in the Selected Roles.

·   For the purposes of subclause 13.5 of the Agreement, in assessing whether an employee has satisfactory performance, the employer will consider whether the employee has acquired the necessary skills to perform the entirety of their role and is using those skills, at all times, in a manner reasonably expected by the employer.

·   Clauses 13.3 of the SCHADS Award will be applied to employees who are employed in the Selected Roles in lieu of clause 13.5 of the Agreement.

·   If the employer closes all or a part of its business, employees will be entitled to choose whether or not they take paid annual leave during any close down.

·   The employer will comply with its obligations under s.65 of the Act in respect of any requests for flexible working arrangements by its employees.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. 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.

1. The Australian Nursing and Midwifery Federation (ANMF), Health Services Union (HSU) and the United Workers’ Union (UWU), 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) of the Act I note that the Agreement covers these organisations.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

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