SYC Ltd T/A SYC Ltd

[2016] FWC 3032

[2016] FWC 3032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

SYC Ltd T/A SYC Ltd
(AG2016/705)

SYC SPECIALISED RESIDENTIAL CARE WORKERS ENTERPRISE AGREEMENT 2014 - 2016

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 13 MAY 2016

Application for variation of the SYC Specialised Residential Care Workers Enterprise Agreement 2014 - 2016.

[1] An application has been made for the approval of a variation to an enterprise agreement known as the SYC Specialised Residential Care Workers Enterprise Agreement 2014-2016 (the Agreement). The Agreement is a single enterprise agreement. This application was made by SYC Limited (ACN 167737144) pursuant to s.210 of the Fair Work Act 2009 (the FW Act).

[2] The application varies clauses 2 to 15, 21 and appendix A to D of the Agreement. The most significant variations are:

● the reduction in the number of consecutive shifts required to be worked;
● the insertion of two new employee classifications;
● change in shift loadings;
● the change to the name of the employing entity; and
● the extension of the nominal expiry date to 30 November 2016.

[3] Correspondence was sent between the Commission and the Applicant, seeking further information in respect of several aspects of the application. Specifically the Applicant was asked to provide information regarding the relationship between the employer bound by the agreement and the SYC Limited, the nature of variations to the agreement and the variation of the nominal expiry date.

[4] The application was the subject of a hearing on 5 May 2016. At this hearing the Applicant was represented by Mr Short (with permission), and Ms Purdy appeared on behalf of the Australian Services Union (ASU).

[5] The ASU expressed concerns that:

● the agreement was not genuinely agreed as the ballot papers were not individually numbered;
● the employer encouraged employees to approve the agreement;
● there was insufficient consultation as a committee approach was not used;
● the agreement failed the BOOT test; and
● the ASU did not agree with the revised classification structure.

[6] No evidence was provided by the ASU to support these concerns.

[7] Based on the material presented by the ASU, I am not persuaded that the ballot method used did not result in genuine agreement being reached.

[8] With respect to the potential for employees to have been coerced or intimidated by the employer expressing its support for a ‘yes’ vote, there is no evidence before me which establishes that any employee felt coerced or intimidated.

[9] With respect to consultation, there is no requirement in the FW Act for the employer to establish a committee to develop or review a proposed variation.

[10] In respect of the BOOT test, no information was submitted by the ASU detailing how the BOOT would fail. I have formed my own view on the BOOT test based on the material provided.

[11] Finally, the fact that the ASU does not endorse some of the content of the Agreement is not a consideration relevant to the review of the Agreement.

[12] The sole remaining issue is the identity of the employer making this application and whether it is appropriate to change the name of the employer in Clause 2.1.1 of the proposed variation. Both of these issues rely on the same facts.

[13] The employer in the original agreement was the Service to Youth Council Inc. This entity is a not-for-profit association that provides residential care services to disadvantaged youth registered under the Associations Incorporation Act 1985 (SA).

[14] The employer in the proposed variation is SYC Limited, it provides (and has done so since June 2014) the same residential care services which were previously provided by the association.

[15] In 2014, the Service to Youth Council Inc. sought to change its status to a company limited by guarantee. In June 2014 an order was made by the Corporate Affairs Commission in accordance with s.42(2) of the Associations Incorporation Act dissolving the Service to Youth Council Inc. on the basis that the undertaking or operations would more appropriately be carried out by a company limited by guarantee (namely SYC Limited (ACN 167737144)).

[16] Section 42(3) of the Associations Incorporation Act t provides that a s.42(2) order has the effect of transferring the property and the rights and liabilities from the Association to the new body corporate.

[17] While at first glance there appears to be a break in the chain that links the two entities, the body corporate stands in the place of the Association and a review of the detail demonstrates a close connection between the Association and the body corporate.

[18] Section 53 of the FW Act provides that an Agreement covers the employer “however described.” Whilst the Explanatory Memorandum to the Fair Work Bill 2008 does not address the intended meaning of the phrase “however described” it appears that this is a reference to form rather than substance. In my view, SYC Limited is the association in another form, it does not represent a change in substance (as would be the case if the new entity were completely unrelated to the former). Section 53 of the FW Act allows the break in the chain to be linked. As a consequence, SYC Limited is bound the Agreement and has standing to make this application.

[19] The variation to Clause 2.2.1 reflects the changed name of the employing entity and on that basis I do not believe this variation is contrary to the provisions of the FW Act.

[20] I am satisfied that each of the requirements of ss.210 and 211 of the Act as relevant to this application for approval have been met.

[21] The variation to the Agreement is approved and will operate on and from 13 May 2016.

[22] A consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

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