Southern Cross Care (QLD) Pty Ltd

[2024] FWCA 3343

[2024] FWCA 3343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Cross Care (QLD) Pty Ltd

(AG2024/3230)

SOUTHERN CROSS CARE (QLD) - AGED CARE ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 23 SEPTEMBER 2024

Application for approval of the Southern Cross Care (QLD) - Aged Care Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Southern Cross Care (Qld) – Aged Care Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Southern Cross Care (QLD) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Delegates Rights Term

1. The Agreement contains a delegates rights term (EA Term) that is not in all respects no less favourable than the modern award (Award Term), pursuant to s.205A. The EA Term misses a number of elements that are contained in the Award Term including the requirement that the notification of a workplace delegate be given to the employer via a written notice. The Australian Nursing and Midwifery Federation/Queensland Nurses and Midwives’ Union (QNMU) submitted that while they accept that the EA Term contains “less detail” than the Award Term, at clause 42(c) of the Agreement, they submit that it includes provision for 5 days of paid workplace representative training leave each year (which I note is subject to the convenience of the Employer on the basis operational needs will not be unduly affected) after a 12-month qualifying period has been served. The Award Term does not require a qualifying period to be served and provides for 5 days of paid leave in the first year and one day in each subsequent year. I do not accept that it is clear that the EA term is superior to the Award term, however it is unnecessary to determine so given the other concerns which I will continue to set out.

1. Furthermore, the QNMU submits that the EA Term provides at clause 42(b) for the right of employees to “meaningful representation” as opposed to the Award Term at clause 7A.5 which it says, limits representation rights. I do not accept this is so. Clause 7A.5 is quite comprehensive and lists a broad and generous range of workplace matters for which workplace delegates may represent the industrial interests of eligible employees. Further, the QNMU submits that the entitlements to reasonable communication in the Award Term, whilst missing from the EA Term, s.350C of the Fair Work Act can be relied on to apply. I again do not accept this is so as the terms in the Act provide very little detail around reasonable communication, which is quite detailed in the Award Term and this is equally, if not more problematic, when it comes to workplace facilities required to be provided under the Award Term. The provisions under the Award Term are far more comprehensive and detailed.

1. The QNMU submits that if the Commission is not satisfied with their submissions, that an undertaking should be sought to overcome these deficiencies and provide for the more beneficial terms of both clauses to apply. Having considered the construction of s.205A of the Act:

“Enterprise agreements to include a delegates’ rights term etc.

(1)  An enterprise agreement must include a delegates’ rights term for workplace delegates to whom the agreement applies.

Note:  Delegates’ rights term is defined in section 12.

When modern award term prevails

(2)  However, if, when the agreement is approved, the delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates:

(a)  the term in the enterprise agreement has no effect; and
(b)  the most favourable term of those in the modern awards, as determined by the FWC, is taken to be a term of the enterprise agreement.

(3)  To avoid doubt, if the delegates’ rights term of a modern award is taken to be a term of an enterprise agreement, the term does not change if the modern award changes.”

It is my view that where the EA Term is less favourable then the Award Team applies. There is no provision to “cherry pick” the best of either term to come up with a new one.

1. Further, s.190 of the Act, which provides for the approval of agreements with undertakings, only applies if the agreement does not meet the requirements set out in ss.186-187. This particular issue is set out in s.205A and therefore I do not find it is open to me to seek or accept such an undertaking.

1. I note that there were no concerns raised by my proposed course of action from any of the other Unions or Bargaining Representatives. On that basis, I am of the view that the Award Term is more favourable for the reasons set out in the preceding paragraphs and therefore the Award Term will apply, and the delegates’ rights terms in the Agreement at clause 42 will have no effect.

Remaining Issues

1. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 24.6 – Annual Leave Cash Out.

However, noting clause 6 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 Australian Workers Union (AWU), United Workers Union (UWU), and QNMU have each 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 the Agreement covers the AWU, QNMU and UWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 August 2027.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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