St Vincent's Care Services Ltd

[2020] FWC 3226

[2020] FWC 3226

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

St Vincent's Care Services Ltd
(AG2019/4864)

DEPUTY PRESIDENT ASBURY BRISBANE, 2 SEPTEMBER 2020

Application for approval of the St Vincent's Care Services Queensland Enterprise Agreement 2018 - 2021.

BACKGROUND

[1] St Vincent’s Care Services Ltd (the Applicant) applied to the Fair Work Commission (the Commission) under s. 185 of the Fair Work Act 2009 (the Act) for approval of the St Vincent’s Care Services Queensland Enterprise Agreement 2018 – 2021. The Applicant filed a Form F16 Application for approval of an enterprise agreement (other than a greenfields agreement) (Form F16) and Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17).

[2] The Agreement is a single enterprise agreement that is expressed to be binding on the Applicant and its employees performing work in the classifications contained in the Agreement employed in a residential aged care facility and home care activities in Queensland. The Agreement is also expressed to be binding on the Queensland Nurses and Midwives Union/Australian Nursing and Midwifery Federation (QNMU/ANMF) and the Australian Workers Union, Queensland Branch (AWU).

[3] Issues in relation to whether the Applicant had complied with legislative requirements with respect to pre-approval requirements and whether the Agreement passes the Better Off Overall Test (BOOT) were identified by the Commission’s Agreement Team and the matter was allocated to me. The QNMU/ANMF filed a Form F18 which also raised concerns about compliance with pre-approval requirements and BOOT issues including similar issues to those identified by the Commission’s Agreement Team.

[4] Hearings were conducted on 20 and 27 March 2020. The Applicant filed written submissions on 4, 19 and 24 March 2020. The QNMU/ANMF filed written submissions dated 11 and 26 March 2020. Undertakings were offered by the Applicant on 19, 24 and 27 March and QNMU/ANMF conceded that those undertakings partly resolved the BOOT issues it had identified. As a result, the QNMU withdrew a number of grounds upon which it objected to the approval of the Agreement. Objections pressed by the QNMU/ANMF can be summarised as follows:

•  Coverage of the Agreement including discrepancies between the scope set out in the Notice of Employee Representational Rights (NERR) issued by the Applicant and the coverage provisions of the Agreement and the application of the Agreement to facilities acquired by the Applicant which are covered by existing enterprise agreements with more favourable provisions;

•  The manner in which the ballot for approval of the Agreement was conducted including the involvement of IRIQ Pty Ltd in the capacity of both employer bargaining representative and as the entity which conducted the ballot for approval of the Agreement;

•  Requirements that part-time employees work a minimum number of shifts per week or per fortnight;

•  Provisions to the effect that superannuation contributions are not payable on annual leave loading.

[5] In a Decision 1 issued on 28 April 2020 I approved the Agreement after accepting a number of undertakings offered by the Applicant and after seeking the views of the ANMF/QNMU and the AWU in relation to those undertakings. My reasons for deciding to approve the Agreement are set out below.

ISSUES

Coverage/NERR

[6] In correspondence with the Applicant by email dated 26 February 2020 my Associate advised that I had concerns about the coverage of the Agreement on the basis that the NERR issued to employees on 27 July 2018 states that the Agreement is proposed to cover “employees that work at St Vincent’s Care Services’ facilities and home care services located in Maroochydore, Gympie, Toowoomba, Red Hill, Mitchelton, Bardon, Kangaroo Point, Arundel and Southport” while the Agreement states in clause 3(d) that it is binding on “all employees of the employer performing work within the classifications contained in the Agreement and employed in a residential aged care facility and home care activities in Queensland”.

[7] The Applicant was requested to provide an explanation in relation to the differences, if any, between the coverage of the Agreement described in the NERR and the coverage in clause 3. The Applicant was also requested to advise if the coverage of the Agreement was expanded or changed during the negotiations and whether a new notification time was triggered such that the Applicant was required to issue further Notices. An additional matter raised was whether sending the NERR by email was sufficient to meet the requirement that the Applicant take all reasonable steps to give a NERR to all employees who would be covered by the proposed Agreement and were employed at the notification time, as required by s. 173 of the Act.

[8] In its submissions the QNMU/ANMF noted the arguable inconsistency between the NERR and coverage provisions of the Agreement and asserted that on or around July 2019, the Applicant acquired two new facilities from Holy Spirit Care Services Brisbane Ltd. These facilities are located at Boondall and Carseldine and are covered by an enterprise agreement – the Holy Spirit Care Services (HCS) Enterprise Agreement 2017 (the HSCS Agreement) which has a nominal expiry date of 7 May 2020. QNMU/ANMF submits that the HSCS Agreement was a transferrable instrument pursuant to s. 312 of the Act and continues to cover employees at both the Boondall and Carseldine facilities.

[9] QNMU/ANMF further submitted that the HSCS Agreement contains superior terms and conditions to those found in the Agreement subject of these proceedings and that because of the wide scope of that Agreement, employees covered by the HSCS Agreement may be covered by the Agreement in these proceedings. The QNMU/ANMF contended that this change in coverage could occur in circumstances where employees covered by the HSCS Agreement had no opportunity to vote on the Agreement in these proceedings. In oral submissions at the hearing the QNMU/ANMF also contended that there was nothing preventing the Applicant from applying to terminate the HSCS Agreement which would result in the Agreement subject of these proceedings covering the employees at the Boondall and Carseldine facilities.

[10] The Applicant submitted that when the NERR was issued and the Agreement was made, the facilities listed in the NERR were all the facilities operated by the Applicant in Queensland. The Applicant also submitted that at the time the hearing was conducted the sale of the Boondall and Carseldine facilities had not been completed. After the hearing a statutory declaration was filed by the Applicant made by Mr Vivian Botsford, HR Director in which it is declared that the employing entity for the Agreement subject of these proceedings is St Vincent’s Care Services Ltd ABN 50055210378 and the employing entity for the Carseldine and Boondall sites is St Vincent’s Care Services Carseldine Ltd (formerly known as Holy Spirit Care Services Brisbane) ABN 49094645262.

[11] After receiving Mr Botsford’s statutory declaration the QNMU/ANMF advised that it did not wish to be heard further in relation to the coverage issue.

Ballot

[12] In an email to the Applicant seeking further information in relation to the Agreement I requested further information about the conduct of the ballot. The email also pointed out that information about the ballot appended to the Form F17 indicated that employees being asked to approve the Agreement were informed that: “The balloting service is to be provided by an independent third party, IRIQ Pty Ltd…”. Further it was pointed out that IRIQ Pty Ltd is the Applicant’s representative in these proceedings and was appointed as the Applicant’s bargaining representative.

[13] An explanation was requested in relation to IRIQ Pty Ltd’s role in bargaining and how that organisation is an “independent third party” as described in the material provided to employees. A question was also raised about whether this issue gave rise to concerns about genuine agreement for the purposes of s. 188 of the Act.

[14] In response to this concern, IRIQ submitted:

•  IRIQ Law provides HR and legal consulting services in the area of employment and industrial law. Its legal services are provided by legal practitioners.

•  As part of these legal services, IRIQ Law’s legal practitioners may be engaged as an employer bargaining representative to negotiate the terms of an enterprise agreement.

•  In the present case, Ms Theresa Moltoni OAM, Managing Legal Practitioner of IRIQ Law was nominated as the employer bargaining representative for the Agreement.

•  IRIQ Law also provides balloting services for enterprise bargaining ballots through its proprietary electronic balloting system.

•  IRIQ Law’s balloting services are conducted by a separate division of IRIQ Law and is overseen by a designated balloting officer.

•  The balloting officer has no involvement in the negotiation of an agreement in relation to which balloting services are provided and has a role of overseeing the conduct of the ballot via IRIQ Law’s proprietary electronic balloting system.

•  At the close of a ballot IRIQ Law’s proprietary electronic balloting system compiles a ballot report showing the number of persons who voted in the ballot and the number that voted “Yes” and the number that voted “No”. The ballot report is certified by a solicitor or Justice of the Peace .

•  A copy of the ballot report in relation to the ballot for the Agreement was provided to the Commission on 19 December 2019 and was certified by Mr Luke Gilliland, Solicitor at IRIQ Law. Mr Gilliland had no involvement in the conduct of the ballot nor the enterprise agreement negotiations.

[15] On this basis IRIQ Law submitted that its balloting services are provided at arm’s length and in a separate department from the legal team who are involved in negotiations for agreements or as bargaining representatives. Further, the IRIQ Solicitor who certifies the ballot results for a particular agreement has no involvement in the negotiations for that agreement. IRIQ further submitted that its balloting processes are separate and independent from the enterprise bargaining process that takes place for employers that choose to engage IRIQ Law’s balloting services in respect of enterprise agreements. The two divisions do not communicate regarding their respective roles except for the passing over of the final ballot report.

[16] In the present case, IRIQ law submitted that the ballot was conducted in accordance with its usual process and completely independently from Ms Moltoni’s role in negotiating the enterprise agreement. IRIQ Law further submitted that the Act does not require that a ballot be conducted in secret in any event.

[17] The QNMU/ANMF took up this matter in its submissions contending that notwithstanding separate operations and choice of team member conducting a ballot, there is a reporting line and therefore a connection and combined business operation such that the ballot team cannot be considered “independent” and a “third party” as defined in ordinary use of those terms. It was further contended that as IRIQ Law employees alternate between the role of balloting officer for one client and advisor for another, such that a person holding a senior or management position may advise the employer while a subordinate conducts the ballot, the statement on the Form F17 is inaccurate as IRIQ law and its ballot team were not independent third parties.

[18] In response, IRIQ Law stated that the usual definition of “third party” is not adaptable to enterprise bargaining which is generally not an adversarial process in comparison with a dispute. Parties are legally required to bargain in good faith and the good faith bargaining requirements are not adversarial in nature. Further, IRIQ stated that the role of the balloting officer is to simply oversee electronic ballots that are run via IRIQ’s proprietary balloting system and the balloting officer does not provide legal or consulting advice to the employer with respect to an enterprise agreement that is being balloted. Ballot reports issued via IRIQ’s proprietary ballot system are certified by a solicitor or JP who has no involvement in the conduct of the ballot or the enterprise agreement negotiation.

[19] According to IRIQ Law any of its employees who is a bargaining agent for an enterprise agreement operates entirely at arm’s length from the conduct of the ballot and is a third party with no involvement in bargaining for the agreement being balloted. The ballot was more than a show of hands and results cannot be altered in the system and have an audit trail. As a result, the ballot was conducted in compliance with the Act.

[20] In further reply submissions, QNMU/ANMF reiterated that IRIQ Law cannot be seen as an independent third party for the purposes of s. 188 of the Act, when it is both bargaining representative and ballot agent. Reference was made to IRIQ Law’s website which refers to Ms Moltoni and Mr Gilliland as part of the IRIQ Law team. In relation to the balloting software referred to by IRIQ Law, the QNMU/ANMF contends that the term “proprietary” denotes the ownership of the software being operated rather than any independence on the part of IRIQ Law. Regardless of separate teams from IRIQ Law undertaking the task it is still IRIQ Law – the bargaining representative appointed by the Respondent – who was in control of the ballot process including collation of the results electronically. The QNMU/ANMF also expressed concern that the inaccurate use of the term “third party” in the material provided to employees was misleading.

Part-time working hours

[21] The issue raised by the QNMU/ANMF in relation to hours of work for part-time employees is that Clause 15.4(a) of the Agreement provides:

“A part-time employee is an employee who is engaged to work less than 38 ordinary hours per week or 76 hours per fortnight consisting of not less than three (3) shifts per week or six (6) per fortnight and whose hours of work are reasonably predictable.”

[22] The QNMU/ANMF pointed to the fact that neither the Nurses Award 2010 nor the Aged Care Award 2010 require part-time employees to work a minimum number of shifts per week or per fortnight. While noting the positive impacts of part-time employees having increased hours and increases to the base minimum, the QNMU/ANMF submitted that this provision may have negative effects on some employees. In this regard, it was submitted that the provision could indirectly discriminate against employees who may be seeking to work fewer hours on the basis of carer’s responsibilities or age (because they are transitioning to retirement).

[23] The Applicant submitted that the requirement that part-time employees work a minimum of three shifts per week or six shifts per fortnight reflects feedback from clients receiving care services. Given the nature of care provided, recipients often establish a relationship of trust with their carers and have expressed a preference for continuity of carers throughout the week to avoid disruption. The model adopted by the Applicant guarantees a certain number of shifts to part-time employees while ensuring continuity of care for care recipients. The Applicant also submitted that as the majority of its part-time employees already work more than three shifts per week, the impact of this provision is minimal.

[24] Further, the Applicant submitted that it would be required by the consultation term in clause 35 of the Agreement, to consult any affected employees consistent with the equivalent terms in the underpinning Awards. In oral submissions the Applicant said that its approach with respect to the small number of employees who may currently work less than three shifts per week or six shifts per fortnight would be to consult and attempt to reach agreement with such employees. This may include redeploying such employees to other areas of its operations, engaging them on a casual basis and/or the employee’s position being considered to be redundant on the basis that the Applicant cannot accommodate a part-time position where an employee works less than three shifts per week or six shifts per fortnight.

[25] In response to a question from the Commission about whether clause 19(f) of the Agreement could be used to unilaterally allow the Applicant to alter the roster of a part-time employee with seven days’ notice, the Applicant agreed to provide an undertaking that it would not use this provision to increase the number of shifts worked in a week or a fortnight by any current part-time employee who is working less than three shifts per week.

[26] The QNMU maintained its opposition to the provision and its contention that it could allow for indirect discrimination against employees with caring responsibilities or older employees who are transitioning to retirement or employees who have jobs with other employers and wish to work less than the minimum number of shifts required by the Applicant.

Superannuation and annual leave loading

[27] Clause 25.8 of the Agreement provides as follows in respect of annual leave loading:

(a) In addition to their Annual Leave payment an employee will be paid an annual leave loading to compensate for the notional lost opportunity of overtime:

(i) an employee will receive an annual leave loading of 17.5% of their Annual Leave or the weekend and shift penalties the employee would have received had they not been on leave during the relevant period, whichever is greater.

(b) The Annual leave loadings in clause 25.8(a) are not payable for purchased annual leave in accordance with clause 25.10.

(c) Shift allowances and weekend penalties are not payable for public holidays which occur during a period of leave.

[28] In relation to this provision, the Applicant submitted that paragraph 238 of the Superannuation Guarantee Ruling SGR2009/2 provides that annual leave loading payable under an award or industrial instrument is not ordinary time earnings if it is demonstrably referable to a notional loss of opportunity to work overtime. The Applicant also submits that the underpinning Awards do not express the reason or the entitlement to annual leave loading.

[29] In its written submissions the Applicant traced the history of leave loading and contended that it is payable to compensate for the notional loss of opportunity to work overtime while on leave rather than to compensate for time worked, regardless of whether the employee ordinarily works overtime. It was also submitted that this was standardised during the award modernisation process. After referring to a number of decisions in which leave loading was awarded, the Applicant referred to the final report of the Fair Work Review Panel which noted that:

“The provision of annual leave loading was originally to compensate employees for the notional loss of overtime earnings while on leave, although the benefit then spread to most sectors of the workforce, including areas not generally subject to overtime payments.”2

[30] The Applicant submitted that as a matter of historical practice and policy, it had self-assessed that annual leave loading is not ordinary time earnings on the understanding that it was paid for the notional loss of opportunity to work overtime, as standardised through the award modernisation process. Just as leave loading was standardised, so was the reason for leave loading accepted as being applicable in most industries.

[31] The Applicant referred to a Statement made by the ATO number QC58207 dealing with the issue of whether annual leave loading is included in ordinary time earnings for superannuation guarantee purposes and the evidence required to establish this. It was submitted that the Applicant has self-assessed that annual leave loading is demonstrably referable to lost opportunity to work overtime. The Applicant also submitted that there is no evidence more than five years old (being the statutory period employers are required to keep records of superannuation guarantee matters) that suggests the entitlement to annual leave loading was for a reason other than to compensate for the notional lost opportunity to work overtime. Accordingly, clause 25.8 does not deviate from “common practice” such that employees will be worse off by virtue of that term. It was further submitted that in light of the ATO’s statement regarding the evidentiary requirements for future quarters, it is reasonable for the Applicant to express this position in the Agreement.

[32] The QNMU/ANMF submitted that the historical decisions referred to by the Applicant relate to manufacturing and resource industries where the workforce was predominantly full-time and worked overtime. In the present case, the Applicant employees some 719 part-time employees and whilst those employees may work additional hours, it is not on the basis of overtime. It was also pointed out by the QNMU/ANMF that neither the Aged Care Award 2010 or the Nurses Award 2010 expressly refer to leave loading as being for the notional lost opportunity for overtime.

[33] The QNMU/ANMF also submitted that the entitlement to annual leave loading has now been standardised as an entitlement in all modern awards for full-time and part-time employees regardless of whether they work overtime. The QNMU/ANMF referred to the statement dated 6 June 2019 numbered QC58207 in which the Australian Taxation Office stated that relying on historical opinions of the initial purpose of annual leave loading generally won’t be enough to demonstrate that a specific annual leave loading entitlement relates to a lost opportunity to work overtime.

[34] According to the QNMU/ANMF the historical context of the entitlement to leave loading in other industries with different characteristics is not a relevant consideration to assess if employees employed by the Applicant are entitled to leave loading. Rather, the relevant factor is to consider whether employees are working overtime. In the present case, the workforce of the Applicant is predominantly part-time and may work extra hours on a rostered basis.

CONSIDERATION

The ballot issue

[35] There is no particular method stipulated by which employees may vote on whether they approve a proposed enterprise agreement. Section 181(1) of the Act provides that the employer may request employees to approve a proposed enterprise agreement by voting for it. Section 181(3) provides that without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[36] In the present case, the ballot was conducted by the entity which was also the employer’s bargaining representative. This is not a sufficient basis upon which I could be satisfied that employees had not genuinely approved the Agreement. IRIQ is a law firm. There is no evidence of any impropriety on its part or of any irregularity in the conduct of the ballot. There was evidence of appropriate checks and balances being implemented by IRIQ in relation to this dual role.

[37] Absent some evidence of irregularity in relation to the manner in which the ballot was conducted, there is no basis for finding that the Agreement was not genuinely approved. I also do not accept that referring to IRIQ as a third party in the ballot process, was misleading. There is no evidence that any employee was mislead or that this compromised the integrity of the ballot in any way. The conduct of the ballot by IRIQ is not a basis for refusing to approve the Agreement.

The coverage/NERR issue

[38] Section 173 of the Act requires that the Commission be satisfied that the employer took all reasonable steps to give a NERR to each employee covered by a proposed agreement, who is employed at the notification time. Section 174 prescribes the content and form of the NERR including that it contains the content prescribed by the Fair Work Regulations 2009.

[39] In the Form F17 Employer’s statutory declaration filed with the Agreement the Applicant stated that the name of the employer is St Vincent’s Care Services Ltd and that the employer’s ABN is 50 055 201 378. It is further stated that the notification time for the Agreement was 27 July 2018. In response to a question asking what steps the employer took to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and is employed at the notification time for the Agreement, the Applicant responded as follows:

“A Notice of Employee Representational Rights was emailed to all employees covered by the proposed agreement that were employed at the notification time for the Agreement.”

[40] The NERR stated that:

“St Vincent’s Care Services Ltd gives notice that it is bargaining in relation to an enterprise agreement (St Vincent’s Care Services Enterprise Agreement 201 8) which is proposed to cover employees that work at St Vincent’s Care Services Facilities and home care services located in Maroochydore, Gympie, Toowoomba, Red Hill, Mitchelton, Bardon, Kangaroo Point, Arundel and Southport.”

[41] The Agreement provides as follows at clause 3:

“3. PARTIES BOUND

This Agreement shall be binding according to its terms upon the following:

(a) St Vincent’s Care Services Limited;

(b) Queensland Nurses and Midwives Union/Australian Nursing and Midwifery Federation (QNMU/ANMF;

(c) The Australian Workers Union (AWU) Queensland Branch;

(d) all those employees of the employer performing work within the classifications contained in this agreement and employed in a residential and aged care facility and home care activities in Queensland.”

[42] The term “employer” used in clause 3(d) is defined in clause 6 as follows:

“‘Employer’ means St Vincent’s Care Services Ltd trading as St Vincent’s Care Services (50055210 378).”

[43] While the Agreement was being negotiated, two facilities previously operated by Holy Spirit Care Services were acquired by an entity known as St Vincent’s Care Services Carseldine Ltd ABN 49094645262. The Applicant submits that the facilities named and specified in the NERR are all of the facilities it operated in Queensland at the notification time. There is no evidence to contradict that assertion. There is no evidence that any employee who was given the NERR was confused about the coverage of the Agreement.

[44] Further, the employing entity for the two facilities that were acquired is not the same employing entity that is covered by the Agreement in the present case. As a result, a new notification time was not triggered at the time of the acquisition and a further NERR was not required to be issued. Employees at those facilities are covered by the HSCS Agreement both before and after it reaches its nominal expiry date.

[45] The Agreement subject to these proceedings cannot cover St Vincent’s Care Services Carseldine Ltd or its employees without further steps being taken by the Applicant with respect to the HSCS Agreement and the employees of St Vincent’s Care Services Carseldine Ltd. If the Applicant sought to take those steps, the QNMU/ANMF and its members and employees affected would be entitled to be informed and to be heard in any proceedings before the Commission.

[46] It is not necessary that the description of the coverage in a NERR exactly match the coverage clause of an agreement that is ultimately negotiated. What is required is that when the scope of an agreement under negotiation is expanded that a NERR be given to employees in the broader group. I accept that confusion about entities and employees that are covered by a proposed agreement could result in a finding that it was not genuinely made, however this is not such a case. I am satisfied that the NERR was valid and was given to employees as required by the Act. This is not a basis for refusing to approve the Agreement.

The part-time working hours provision

[47] Clause 15.4(a) is a two-way street. The effect of the clause is to require part-time employees to work a minimum number of shifts per week or per fortnight and to guarantee that minimum to such employees. The employer submitted, and I accept, that a very limited number of its part-time employees work less than three shifts per week or six shifts per fortnight. The ANMF/QNMU recognises that the provision provides a benefit to part-time employees by effectively guaranteeing them a minimum number of shifts in a week or a fortnight.

[48] If the Nurses Award 2010 or the Aged Care Award 2010 applied, the employer would be entitled to offer part-time work on the basis that it has an operational requirement that necessitates such working hours for part-time employees. If the Awards applied to employees and the employer sought to implement a change to hours of work for existing part-time employees to establish the three or six shift minimum, the employer would be obligated to consult employees about such a change but could nonetheless implement it.

[49] The employer offered undertakings that:

•  it would not use the provisions of clause 19(f) which allows for seven days’ notice of a change of roster to be given, to unilaterally alter the working arrangements of any employee employed at the time the Agreement commences who may work less than three shifts per seek or six shifts per fortnight; and

•  it would not apply clause 35.3(c) of the Agreement in relation to employees engaged on less than three shifts per week at the time the Agreement takes effect, to with the effect that any obligation to consult such employees about roster change would not be reduced by virtue of the Agreement requiring part-time employees to work a minimum of three shifts per week.

[50] I am satisfied that the undertakings offered by the employer address detriment to any employee working less than three shifts per week when the Agreement commences. In my view the undertakings protect the position of such employees and places them in a position that is the same or substantially the same as they would be in if the Awards applied.

[51] Any potential detriment from the operation of the provision is therefore addressed by the undertakings and for this reason I accepted the undertaking and determined that this matter was not one that would cause the Agreement to fail the BOOT.

Superannuation/annual leave loading issue

[52] I am not aware of any modern award which contains a provision to the effect that annual leave loading is referable to notional loss of opportunity to work overtime. It is certainly the case, as submitted by the ANMF/QNMU that neither the Nurses Award 2010 or the Aged Care Award 2010 contain such a provision.

[53] Whether a particular employer pays annual leave loading on the basis that it is referable to notional loss of opportunity to work overtime is a question of fact in each case. An employee who disputes the exclusion of annual leave loading from the calculation of ordinary time earnings for superannuation contribution purposes may make a claim that annual leave loading should be included.

[54] To allow a provision to be inserted into an enterprise agreement to create the factual situation it purports to reflect would remove an entitlement that employees may have if the Applicant could not demonstrate that its payment of annual leave loading was for the notional loss of opportunity to work overtime. The Applicant stated that it has no evidence one way or the other in relation to the purpose for which it had paid annual leave loading. In my view, the Applicant is essentially attempting to create evidence it does not currently have, to demonstrate the purpose of annual leave loading in circumstances where it has not established that it ever paid leave loading for the purpose of compensating employees for lost opportunity to work overtime.

[55] For these reasons I was satisfied that the effect of this provision was properly explained to employees. Further, in light of the fact that a relatively small contribution to a superannuation fund can have significant impact in the longer term, and where there is no evidence of the impact on the balance of an employee’s accrued superannuation of the exclusion of annual leave loading from ordinary time earnings, I was unable to be satisfied that the Agreement passes the BOOT.

[56] Accordingly I indicated to the employer that I would accept an undertaking to resolve this concern. The terms of such undertaking were canvassed at the hearing on 27 March at which time the ANMF/QNMU had an opportunity to express its views in relation to the undertaking. An undertaking in the following form was provided and accepted by me as addressing the matter:

•  Delete the following words from Clause 25(8)(a): ‘to compensate for the notional lost opportunity of overtime’.

CONCLUSION

[57] For these reasons I approved the Agreement and issued a Decision to that effect on 28 April 2020.

DEPUTY PRESIDENT

Appearances:

Ms T Moltoni of IRIQ on behalf of the Applicant.

Mr C Murray for the ANMF/QNMU.

Mr A Santelises for the AWU.

Hearing details:

2020.

20 & 27 March.

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR720341>

 1   [2020] FWCA 2220

2 Towards more productive and equitable workplaces – An evaluation of the Fair Work Legislation June 2012 p. 99.