St Basil's Homes Ltd T/A St Basil's NSW/ACT

[2024] FWCA 3311

[2024] FWCA 3311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

St Basil's Homes Ltd T/A St Basil's NSW/ACT

(AG2024/2882)

ST BASIL'S NSW/ACT ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 19 SEPTEMBER 2024

Application for approval of the St Basil's NSW/ACT Enterprise Agreement 2024.

Introduction

[1]      St Basil’s Homes Ltd (the Employer) has made an application for approval of an enterprise agreement known as the St Basil's NSW/ACT Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The relevant awards for the purpose of the BOOT are, depending upon the classification of the employee, the Aged Care Award 2010, the Health Professionals and Support Services Award 2020(HPSS Award), the Nurses Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2020 (SCHADS Award).

National Employment Standards (NES) precedence term in Clause 7.2 of the Agreement

[2]      Clause 20.5(e) of the Agreement provides that the employer and employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s.115(3) of the Act which provides that such substitution may only occur by Agreement between the employer and an employee. I note that in accordance with the NES precedence term in Clause 7.2 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Agreement Rates Below Award Rates

[3]      In the initial application, the rates of pay in the Agreement for Level 1 Health Professionals with a Bachelor’s Degree appeared to be below the rates of pay in the HPSS Award. After the Commission raised this with the Employer, the Employer claimed that it incorrectly aligned the Health Professional – Level 1 (Bachelor’s Degree) classification in the Agreement with Level 2 Health Professional Employee classification in the Award in the F17A Declaration. The Employer subsequently filed an amended Form F17A which showed that the Health Professional – Level 1 (Bachelor’s Degree) classification in the Agreement is aligned with the Level 1 Health Professional Employee classification in the HPSS Award.

[4]      I consider it appropriate in the circumstances to allow a correction of a document

relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Excursions and 24-Hour Care Shifts

[5]      The Agreement is silent about providing safeguards for 24 Hour Care and Excursions as provided in Clauses 25.8 and 25.9 respectively of the SCHADS Award. The Employer provided submissions that there is no requirement for the workforce to undertake either excursions or 24-hour care shifts. On the basis of this submission I am satisfied that it is reasonably foreseeable that the Employer will not require its employees to work either Excursion shifts or 24-Hour Care shifts during the life of the Agreement.

Allowances

[6]      The Agreement is silent about some allowances provided by clause 15 of the Aged Care Award 2010 including the leading hand allowance and nauseous work allowance. The Employer submits that there is no situation where these allowances are payable to its current workforce. On the basis of this submission I am satisfied that it is reasonably foreseeable that the Employer will not require its employees to work in any circumstances which would attract the payment of any allowances in clause 15 of the Aged Care Award 2010 which are not already provided in the Agreement.

Rosters

[7]      Clause 16 of the Agreement provides that appropriate consultation should be undertaken in relation to roster changes although there is no provision regarding a specific timeframe regarding the notification of changes. In contrast, Clause 25.5(d)(i) of the SCHADS Award provides that 7 days’ notice will be given of a change in a roster.

[8]      The Employer provided submissions stating that the Agreement provides safeguards, such as clause 43.8, which ensure a fair and reasonable process aligned with consultation for rosters and ordinary hours of work.

Apprentice Rates

[9]      Clause 13.6 of the Agreement provides that apprentices will be paid in accordance with the relevant modern award. In these circumstances, apprentices are not better off overall under the Agreement compared to the relevant modern award. The Employer submitted that no apprentices are currently engaged under the terms of the Agreement and there is no intention to engage apprentices during the life of the Agreement. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ any apprentices during the life of the Agreement.

Trainee Rates

[10]    Clause 13.5 of the Agreement provides that the minimum wages and conditions for trainees will be in accordance with the Miscellaneous Award 2020. In these circumstances, trainees are not better off overall under the Agreement compared to the relevant modern award. The Employer submitted that no trainees are currently engaged under the terms of the Agreement and there is no intention to engage trainees during the life of the Agreement. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ any trainees during the life of the Agreement.

Section 190 Undertakings

[11]    The employer provided written undertakings. A copy of the undertakings is attached as 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.

Section 186, 187, 188 and 190

[12]    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.

Section 183 Bargaining Representatives

[13]    The Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

[14]    In accordance with s.201(2), I note that the Agreement covers the HSU and the ANMF.

Approval

[15]    The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

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