St John Of God Health Care Inc.
[2022] FWCA 3085
•6 SEPTEMBER 2022
| [2022] FWCA 3085 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
St John Of God Health Care Inc.
(AG2022/2480)
St John of God Health Care Inc. (Victoria) Allied Health Professionals Enterprise Agreement 2021
| Health and welfare services | |
| COMMISSIONER MATHESON | SYDNEY, 6 SEPTEMBER 2022 |
Application for approval of the St John of God Health Care Inc. (Victoria) Allied Health Professionals Enterprise Agreement 2021.
An application has been made for approval of an enterprise agreement known as the St John of God Health Care Inc. (Victoria) Allied Health Professionals Enterprise Agreement 2021 (Agreement). The application was made by St John Of God Health Care Inc. (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.
The Health Services Union (HSU) filed a Form F18 in which it noted that, in the Form F17 declaration filed by the Applicant, there is a reference to the long service leave provisions in the Agreement being different to those under the Health Professionals and Support Services Award 2020 (Award) and submitted that:
· long service leave is not provided for under the Award but under the National Employment Standards (NES);
· specifically, s.113 of the Act provides that, if there are applicable award-derived long service leave terms in relation to an employee, the employee is entitled to long service leave in accordance with those terms;
· the Health Services Union of Australia (Health Professional Services – Private Sector Victoria) Award 2004 (HSUA Award) is an award that applies to employees covered by the Agreement pursuant to the Act with regard to applicable award-derived long service leave terms; and
· the HSUA Award contains long service leave terms at clause 37 that continue to apply to employees covered by the Agreement as the HSUA Award would have covered them prior to the making of the Award.
Clause 37.1.1 of the HSUA Award provides that an employee shall be entitled to long service leave with pay in accordance with clause 37 and clause 37.6.4 defines “pay” as:
“remuneration for an employee’s normal weekly hours of work calculated at the employee’s ordinary time rate of pay in clause 20 - Wage rates, at the time the leave is taken or (if he or she dies before the completion of leave so taken) as at the time of his or her death, and shall include the amount of any increase to the employee’s ordinary time of pay which occurred during the period of leave as from the date such increase operates, provided that where accommodation is made available to an employee during his or her period of leave and where a deduction is made for the rental thereof pursuant to clause 23 - Deductions and allowances, such amount shall be deducted from the pay for the period of leave”.
The Agreement provides, at clause 34(j)(i)(1) that, for the purposes of long service leave payment, “pay” means:
“remuneration for an Employee’s normal weekly hours of work calculated at the Employee’s ordinary time rate of pay provided in Appendix 1 – Wage Rate Schedule hereof at the time the leave is taken or (if the Employee dies before the completion of leave so taken) as at the time of their death; and shall include the amount of any increase to the Employee’s ordinary time rate of pay which occurred during the period of leave as from the date such increase operates” (emphasis added).
Clause 34(j)(i)(2) of the Agreement includes the following definition of “Normal Weekly Hours”:
““Normal Weekly Hours” means the average weekly hours worked over the duration of the Employee’s continuous service.
a.For example, if an Employee worked 38 hours per week (i.e Full-time) for the first five years of their period of continuous employment, and then changed to part-time and worked 30 hours per week for the next five years, at the anniversary of ten years’ service, their entitlement to LSL would be 34 hours per week for the 17.33 weeks of LSL (i.e 38 hours + 30 hours, divided by 2 = 34 hours per week).
b.For example, if an Employee worked 30 hours per week (i.e Part-time) for the first five years of their period of continuous employment, and then changed to full-time and worked 38 hours per week for the next five years, at the anniversary of ten years’ service, their entitlement to LSL would be 34 hours per week for the 17.33 weeks of LSL (i.e 38 hours + 30 hours, divided by 2 = 34 hours per week).”
As the HSU submitted in its Form F18:
· this definition of “Normal Weekly Hours” in the Agreement has the effect that an employee would be paid for a lesser number of hours when they take long service leave when compared to the actual number of working hours they are currently working at the time of taking the leave; and
· the HSUA Award does not provide for an employee to be paid at an average hours rate, which could be an amount less than the number of hours per week they are working at the time of taking the leave.
The HSU submitted that this means the Agreement provides for a detrimental provision when compared to an employee’s long service leave entitlements pursuant to the NES, which preserve the long service leave entitlements under the HSUA Award. The HSU submitted that such a term would be in breach of s.55 of the Act and, pursuant to s.56 of the Act, is of no effect to the extent that it contravenes s.55.
The Applicant accepts that, by virtue of s.113 of the Act, the HSUA Award applies. However, the Applicant submitted that clause 8 of the HSUA Award provides for flexibility to allow for the enterprise to operate efficiently according to its particular needs. Clause 8 of the HSUA Award provides:
“8. ENTERPRISE FLEXIBILITY PROVISIONS
(See ss.113A and 113B of the Act)
Where an employer or employees wish to pursue an agreement at the enterprise or workplace about how the award should be varied so as to make the enterprise or workplace operate more efficiently according to its particular needs the following process shall apply:
8.1 A consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise or workplace shall be established.
8.2 For the purpose of the consultative process the employees may nominate the union or another to represent them.
8.3 Where agreement is reached an application shall be made to the Commission.”
The Applicant submitted that the averaging methodology being applied to the definition of “normal weekly hours” in the Agreement could be captured under this provision and is a feature of other Agreements.
Pursuant to s.186(2)(c) of the Act, the Commission must be satisfied that the terms of the Agreement do not contravene s.55 of the Act when determining whether to approve an enterprise agreement. Having considered the long service leave terms of the HSUA Award and Agreement together with the submissions of the parties, I observe that clause 34(j)(i)(2) of the Agreement may be inconsistent with the NES. However, clause 8 of the Agreement provides:
“8. RELATIONSHIP TO THE NATIONAL EMPLOYMENT STANDARDS
Entitlements in accordance with the National Employment Standards (“NES”) are provided for under the Act. Where this Agreement also has provisions regarding matters dealt with under the NES and the provisions in the NES set out in the Act are more favourable to an Employee in a particular respect than those provisions, then the NES will prevail in that respect and the provisions dealing with that matter in this Agreement will have no effect in respect of that Employee. The provisions in this Agreement otherwise apply.”
Noting clause 8 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Applicant, who is the employer covered by the Agreement, provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Agreement; or
(b)result in substantial changes to the Agreement.
Pursuant to s.190(3) of the Act, I accept the Undertakings.
Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.
The HSU, 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) of the Act, I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2022. The nominal expiry date of the Agreement is 31 March 2024.
COMMISSIONER
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Annexure A
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