St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd
[2024] FWCA 2064
•5 JUNE 2024
| [2024] FWCA 2064 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd
(AG2024/1345)
| Ambulance and patient transport | |
| COMMISSIONER LIM | PERTH, 5 JUNE 2024 |
Application for approval of the St John Ambulance Western Australia Ltd. Patient Transport Services Enterprise Agreement 2023.
St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the St John Ambulance Western Australia Ltd. Patient Transport Services Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
Objections to the Agreement’s approval
One of the bargaining representatives, Mr Eepeng Cheong, raised two concerns regarding the Agreement:
(a)Casuals who were entitled to vote – Mr Cheong submitted that casual employees were only eligible to vote on the Agreement if they worked a shift in the access period. Mr Cheong further submitted that a high number of casuals he spoke to were unable to secure a shift during this period and were deemed ineligible to vote.
(b)Clause 10(g) of the Agreement – Mr Cheong submitted that during bargaining he had pressed for the wording in clause 10(g) to be amended to align with the Applicant’s other enterprise agreements. Mr Cheong further submitted that the clause will impact on the ability of casual employees to maintain their employment while undertaking other commitments; the flexibility of casuals; resourcing for both on-road officers and office support staff; and the mental health of casual employees.
The Applicant and UWU provided the following views on Mr Cheong’s concerns:
(a)The issue of whether a casual employee is eligible to vote on an agreement is well-established – only casuals who were employed at the time of the vote are eligible to vote.
(b)Clause 10(g) was discussed extensively in bargaining. This is a bargaining issue and is not a BOOT concern or barrier to approval.
Mr Cheong was given the opportunity to inform my chambers whether he sought to be heard or lead evidence in support of his concerns. Mr Cheong did not provide a response. Accordingly, I have determined his objections based on the material before me.
I agree with the Applicant’s and UWU’s position regarding the eligibility of casual employees to vote on the Agreement and rely on National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 and Kmart Australia Limited t/a Kmart and Others [2019] FWCFB 7599 in support of this. I also agree that Mr Cheong’s concerns regarding clause 10(g) are a bargaining issue and is not something that speaks to the statutory requirements that apply to the approval of enterprise agreements. I find that Mr Cheong’s concerns are not an impediment to the Agreement’s approval.
Statutory requirements
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement under s 173(2) was 22 December 2022.
The Applicant has provided written undertakings. 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.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.
I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):
a)Personal Leave – Notification on Absence: Agreement Clause 30.4 provides that an employee must notify the employer at least 2 hours prior on day shift and 4 hours prior on night shift of their absence. This appears inconsistent with s 107 of the Act;
b)Compassionate Leave – Agreement Clause 30.6:
i)General Entitlement – Agreement Clause 30.6 does not provide an entitlement to compassionate leave in circumstances of stillbirth or miscarriage in accordance with s.104 of the Act;
ii)Limitation on Leave – Agreement Clause 30.6 states that “employees are entitled to compassionate leave not exceeding the number of hours worked by the employee in four ordinary days of work”. Given that other leave entitlements accrual under the Agreement are dependent on roster patterns, it is unclear how much compassionate leave employees are entitled to; and
c)Notice of Termination – Withholding Monies: Agreement Clause 35.3(c) provides that where an employee does not provide 7 days’ notice, the employer may deduct and retain monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The United Workers Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 5 June 2024 and, in accordance with s 54, will operate from 12 June 2024. The nominal expiry date of the Agreement is 30 June 2026.
COMMISSIONER
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Annexure A
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