St John’s Youth Services Inc

[2019] FWCA 901

[2019] FWCA 901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St John’s Youth Services Inc
(AG2018/5022)

ST JOHN’S YOUTH SERVICES ENTERPRISE AGREEMENT 2018

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 13 FEBRUARY 2019

Application for approval of the St John’s Youth Services Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the St John’s Youth Services Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St John’s Youth Services Inc. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 December 2018.

[3] On 14 December 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 6 February 2019. The undertaking deals with the following topics:

•  The Employer undertakes to not engage home care employees as defined in section 3.1 of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) for the life of the Agreement.

•  Employees covered by the Agreement will not be required to wear uniforms, participate in excursions or provide 24 hour care as defined in the Award.

•  The definition of a shift worker as defined in clause 7.1.2 of the Agreement will be interpreted as being consistent with the National Employment Standards (NES).

•  Clause 7.5 of the Agreement will be interpreted as being consistent with the NES and be amended as follows:

“An employee may take paid personal/carer's leave if the leave is taken:

a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:

i. personal illness, or personal injury, affecting the member; or

ii. an unexpected emergency affecting the member.

Furthermore employees are entitled to Compassionate Leave pursuant to Section 104 of the Fair Work Act 2009, specifically:

An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee's immediate family, or a member of the employee's household:

a) contracts or develops a personal illness that poses a serious threat to his or her life; or

b) sustains a personal injury that poses a serious threat to his or her life; or

c) dies.”

•  Clause 4.7.5 of the Agreement shall not apply.

•  For the purpose of clause 6.8.1 of the Agreement, time off in lieu not taken at the end of the employment will be paid at the overtime penalty rate prescribed by section 28.1 of the Award.

•  Clause 6.8.3 will be replaced with section 28.3 of the Award.

•  In Schedule 3, clause 3.3 of the Agreement, which concerns span of hours, will be read as being consistent with section 25.7(c) of the Award. Further, the following Award provisions will apply where it is of benefit to the employee:

a) A sleepover means when St John’s Youth Services Inc requires an employee to sleep overnight at premises where the client for whom the employee is responsible is located (including respite care) and is not a 24 hour care shift pursuant to clause 25.8 or an excursion pursuant to clause 25.9 of the Award.

b) The provisions of 25.5 apply for a sleepover. An employee may refuse a sleepover in the circumstances contemplated in 25.5(d)(i) but only with reasonable cause.

c) The span for a sleepover will be a continuous period of eight hours. Employees will be provided with a separate room with a bed, use of appropriate facilities (including staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.

d) The employee will be entitled to a sleepover allowance of 4.9% of the standard rate for each night on which they sleep over.

e) In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.

f) An employer may roster an employee to perform work immediately before and/or immediately after the sleepover period, but must roster the employee or pay the employee for at least four hours’ work for at least one of these periods of work. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this subclause.

g) The dispute resolution procedure in clause 3.3 of the Enterprise Agreement applies to the sleepover provisions.

•  Clause 6.3 of the Agreement will be replaced with section 25.4 of the Award.

•  Clause 4.3 of the Agreement, which relates to the definition of part-time employment, will be replaced with the provisions contained in the Award.

•  Clause 4.4 of the Agreement shall be read as being consistent with section 10.4(a) of the Award, in that an employee is on who is engaged and paid as such, but will not include a part-time or full-time employee.

•  Clause 4.4.3 of the Agreement shall be removed and replaced with section 10.5 of the Award.

•  Clause 4.5.1 of the Agreement shall not apply.

•  Clause 6.5 of the Agreement outlines that rostering arrangements and changes to the roster may be communicated by telephone, direct contact, mail, email, facsimile or any electronic means of communication.

•  Clause 6.5.2 will be applied consistently with section 25.5(a) of the Award.

•  All employees who are called upon to perform the duties of another employee in a higher classification under the Agreement for a period of five consecutive working days or more will be paid for the period for which duties are assumed at a rate not less than the minimum rate prescribed for the classifications applying to the employees so relieved.

•  At clause 6.8.1(c) of the Agreement, which relates to over time, part-time and casual employees will be entitled to payment of overtime in the circumstances consistent with section 28.1 of the Award.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Australian Municipal, Administrative, Clerical and Services Union (ASU)”, 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 this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE501767 PR704860>