Superior Care Group Pty Ltd as Trustee For Russ Egan Family Trust and Russ Egan Merrimac Family Trust T/A Superior Care Group

[2023] FWC 2950

[2023] FWC 2950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Superior Care Group Pty Ltd as Trustee For Russ Egan Family Trust and Russ Egan Merrimac Family Trust T/A Superior Care Group

(AG2023/3292)

COMMISSIONER MCKINNON SYDNEY, 17 NOVEMBER 2023

Application for approval of the Superior Care Group Enterprise Agreement 2023

1. Superior Care Group Pty Ltd as Trustee For Russ Egan Family Trust and Russ Egan Merrimac Family Trust T/A Superior Care Group (Superior Care Group) applied for approval of a single enterprise agreement known as the Superior Care Group Enterprise Agreement 2023 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Agreement covers employees in the aged care industry and is intended to replace the Superior Care Group Enterprise Agreement 2011[1] (existing Agreement) which expired on 30 June 2014.

1. The Australian Nursing and Midwifery Federation – QNMU Branch (ANMF) and United Workers’ Union (UWU) were bargaining representatives for the Agreement. Each union supports approval of the Agreement. The UWU has not expressed a view about whether the Agreement passes the better off overall test. The ANMF has expressed the view that it does.

1. I sought further information from the parties in relation to the nature of hotel services work covered by the Agreement and the applicable modern award for the purposes of the better off overall test. Concerns were also raised in relation to hours of work and penalty rates for casual employees, rates of pay for Assistant Nurses (Level 3) and junior employees performing hotel work, payment of accrued but unused time off in lieu of overtime, whether employees were given a copy of the Notice of Employee Representational Rights (NERR) in accordance with the Act, and whether employees were given 7 clear days’ notice of the vote to approve the Agreement.

1. On 20 October 2023, Superior Care Group gave undertakings in relation to casual rates of pay and time off in lieu of overtime. A purported undertaking was also given in relation to rates of pay for junior employees. The union bargaining representatives confirmed that the NERR was issued to employees in accordance with the Act. Superior Care Group confirmed that employees were not given 7 clear days’ notice of the vote to approve the Agreement. No further information was provided in relation to the nature of hotel work covered by the Agreement, except to explain that the junior rate is applied “in hotel work for after school short shifts” by inexperienced workers.

1. On 23 October 2023, I informed the parties of my preliminary view that the Agreement could not be approved because in the absence of information about the nature of this work or the applicable modern award, I was not satisfied that junior employees performing hotel work would be better off overall under the Agreement. A further opportunity was given to the parties to provide information in relation to the concern by 4.00pm on Thursday, 26 October 2023.

1. On 26 October 2023, the UWU advised that they were “prepared to duly consider any Undertakings the Applicant may wish to make in this matter.” Superior Care Group did not file any further material. On 10 November 2023, Superior Care Group wrote to the Commission, effectively declining to provide further information or a further undertaking in relation to junior employees performing hotel work:

“As I understand it, the party unions all support the agreement and the agreement has been supported by a majority of the workers at a ballot. The Commissioner requested undertakings on a number of matters which the employer has provided save for the matter of junior rates for hotel workers. The Commissioner indicated that the agreement cannot be approved without this undertaking.

As such the agreement cannot pass for the benefit of all the other workers. I accept this decision.”

1. There is no provision for junior rates of pay in either the Aged Care Award 2010 or the Nurses Award 2020. Except in relation to school-based apprentices[2], provisions dealing with rates of pay for junior employees in the Aged Care Award 2010 ceased to operate from 1 July 2014.[3] There is no basis on the materials to find that the junior employees in question are engaged as apprentices.

1. The Agreement provides that junior employees in hotel services will be paid at either 65% or 75% of the applicable rate of pay. Adult rates of pay under the Agreement (for employees other than nurses and chefs) are between 4.37% and 24.39% above the Award. It is likely that the relevant above-award margin in relation to junior employees performing hotel services work will be at the lower end of this range. The undertaking proposed by Superior Care Group does not alter this position in any way. In the circumstances, I am not satisfied that junior employees working in hotel services under the Agreement will be better off overall than if a modern award applied to their employment.

1. I am also not satisfied that the Agreement has been genuinely agreed. Employees were not given 7 clear days’ notice of the time, place and method of the vote before they were asked to approve the Agreement. On the materials, and in circumstances where less than half of the employees who will be covered by the Agreement participated in the vote, I am not satisfied that this was a minor procedural error or that employees were not likely to have been disadvantaged by the error, such that the concern could be overcome by s.188(2) of the Act (as it was at the notification time for the Agreement).[4]

1. It follows that I am not satisfied that the requirements for approval of the Agreement have been met.

1. The application is dismissed.

COMMISSIONER

[1] [2012] FWAA 3688; AE893605.

[2] Aged Care Award 2010, Schedule E.

[3] Aged Care Award 2010, Schedule A – Transitional Provisions.

[4] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, Schedule 1, Part 26, Division 11, item 66.

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