St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd.

[2024] FWCA 1954

[2024] FWCA 1954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd.

(AG2024/1070)

ST JOHN AMBULANCE WESTERN AUSTRALIA LTD COMMUNICATIONS OFFICERS ENTERPRISE AGREEMENT 2023

Ambulance and patient transport industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 29 MAY 2024

Application for approval of the St John Ambulance Western Australia Ltd Communications Officers Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the St John Ambulance Western Australia Ltd Communications Officers Enterprise Agreement 2023 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by St John Ambulance Western Australia Ltd. T/A St John Ambulance Western Australia Ltd. The Agreement is a single enterprise agreement. The United Workers’ Union (UWU) was a bargaining representative for the Agreement. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.

1. Here the relevant award is the Ambulance and Patient Transport Industry Award 2020. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.

1. In this matter concerns were raised with the applicant that various terms in the Agreement could be less beneficial depending on the patterns or kinds of work, or types of employment, applying at the workplace. Concerns were raised in respect to overtime for job share and part time employees to assess whether the rates of pay may in some circumstances fall below the Award rates. Given clause 13(e) of the Agreement provides that employees on job share do not receive overtime when working in excess of their agreed hours, which is provided for at Clause 20 of the Award, it is unclear whether the rates of pay may be high enough to compensate for employees working in isolation or few ordinary hours. I also raised a concern in relation to whether clause 11(k) of the Agreement which provides that part-time employees are entitled to 200% overtime when working in excess of a rostered shift, working in excess of the established shift roster, working on call-back, or working in excess of 76 hours per fortnight may be inconsistent with clause 10 of the Award. In response to these matters the Applicant provided an undertaking. The undertaking provides that additional hours will only be worked where written agreement is in place. For clarity, the Applicant submitted that the undertaking provides a mechanism which will ensure that Part-Time or Job Share employees will not suffer any financial detriment.

1. A further matter was raised in respect to shift workers to assess whether the rates of pay may in some circumstances fall below Award rates. Clarity was sought as to how the shift penalties are applied as it appears to be less beneficial depending on which classification works and how long their shift is. The Applicant has provided an undertaking to state that any employees who do not receive the Rotating Shift Allowance, as outlined in Appendix 1 to the Agreement, will receive a 15% penalty for all hours worked for shifts that finish between 6 pm and 8 am or commence between 6 pm and 6.30 am.

1. Clarity was also sought as to the correct definitions for shift penalties as they appear to differ from definitions found under the Award. The Applicant provided an undertaking which clarifies that no employee shall be scheduled to work an afternoon or night shift that is less than 7 hours in duration. I also raised a concern that while the Agreement provides that no roster will require an employee to work more than 6 consecutive shifts, it does not appear to contain a trigger for maximum overtime shifts. In response the Applicant provided an undertaking to address this concern.

1. Given the explanations provided by the applicant, the undertakings provided, and having regard to s 193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. I note that should the work patterns, kinds of work or types of employment under the Agreement change, an application under s 227A is available for a reconsideration of the BOOT.

1. A copy of the undertakings in relation to the matters raised is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised to the undertakings provided. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s 201(3), the undertakings are taken to be terms of the Agreement.

1. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Having regard to the undertakings, the explanations set out above and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.

1. The United Workers’ 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) I note that the Agreement covers the organisation.

1. The Agreement was approved on 29 May 2024 and, in accordance with s.54, will operate from 5 June 2024. The nominal expiry date of the Agreement at clause 4.4(c) is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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ANNEXURE A