[2017] FWCA 2164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Northcott Society
(AG2016/6612)

NORTHCOTT ENTERPRISE AGREEMENT 2016-2018

Social, community, home care and disability services
COMMISSIONER SAUNDERS	NEWCASTLE, 24 MAY 2017

Application for approval of the Northcott Enterprise Agreement 2016-2018. BOOT satisfied. Undertakings accepted. Enterprise agreement approved.

[1] The Northcott Society (the Employer) has applied to the Fair Work Commission (Commission) for approval of an enterprise agreement known as the Northcott Enterprise Agreement 2016-2018 (Enterprise Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Background

[2] The Enterprise Agreement is a single enterprise agreement and is not a greenfields agreement. It covers employees of the Employer who are covered by the Northcott Enterprise Agreement 2009-2011, 1 namely a range of community services workers, allied health professionals, and support services workers.

[3] The Form F17 filed by the Employer in support of the application for approval of the Enterprise Agreement includes a declaration to the effect that 245 employees cast a valid vote and 219 employees voted to approve the Enterprise Agreement.

[4] Ms Fran Johnston, Industrial Officer of the Health Services Union, New South Wales Branch (HSU), made a statutory declaration (Form F18) on 24 October 2016 in relation to the Employer’s application for approval of the Enterprise Agreement. In that declaration, Ms Johnston declared that:

• the HSU was a bargaining representative for the Enterprise Agreement;

• the HSU supported the approval of the Enterprise Agreement by the Commission and did not have any grounds of objection to it;

• she agreed with the matters contained in the Employer’s Form F17 statutory declaration that were within her knowledge; and

• the HSU wanted to be covered by the Enterprise Agreement.

[5] Ms Natalie Lang, Branch Secretary of the Australian Services Union NSW & ACT (Services) Branch (ASU), made a statutory declaration (Form F18) on 28 October 2016 in relation to the Employer’s application for approval of the Enterprise Agreement. In that declaration, Ms Lang declared that:

• the ASU was a bargaining representative for the Enterprise Agreement;

• the ASU supported the approval of the Enterprise Agreement by the Commission, subject to the Employer providing undertakings to address the matters identified by Ms Lang in her statutory declaration;

• she disagreed with the following matters contained in the Employer’s Form F17 statutory declaration:

“Schedule A – Table 2 on-call allowances below SCHADS. Current on-call allowance for weekdays is $17.96 and for weekends is $35.56.”

• the ASU wanted to be covered by the Enterprise Agreement.

[6] The attitude of each of the HSU and the ASU in relation to the approval of the Enterprise Agreement has changed since those statutory declarations were made in October 2016.

[7] On 27 March 2017, the HSU filed 30 pages of submissions in support of its contention that the Enterprise Agreement should not be approved. 2 The HSU also filed submissions in reply on 19 April 2017.

[8] On 19 April 2017, Ms Leigh Svendsen, Senior National Industrial Officer of the HSU, made a statutory declaration (Form F18) in which she declared that:

• the HSU was a bargaining representative for the Enterprise Agreement;

• the HSU does not support the approval of the Enterprise Agreement by the Commission and relies on its written submissions;

• she disagreed with matters contained in the Employer’s Form F17 statutory declaration, as set out in the HSU’s written submissions; and

• the HSU wanted to be covered by the Enterprise Agreement.

[9] No evidence has been adduced by the HSU to explain its change in position between the making of the statutory declaration by Ms Johnston on 24 October 2016 and the making of the statutory declaration by Ms Svendsen on 19 April 2017. Further, many of the issues raised by the HSU in its detailed written submissions were not raised by the HSU until either the filing of the written submissions on 27 March 2017 or a considerable period of time after the Employer filed its application for approval of the Enterprise Agreement on 24 October 2016. That has, unfortunately, contributed to the delay in the determination of the Employer’s application for approval of the Enterprise Agreement.

[10] On 2 March 2017, Ms Judith Wright, Deputy Branch Secretary of the ASU, made a statutory declaration (Form F18) in which she declared that:

• the ASU was a bargaining representative for the Enterprise Agreement;

• the ASU supported the approval of the Enterprise Agreement by the Commission, “should the concerns below and in subsequent Commission submissions be addressed”. The concerns expressly identified in Ms Wright’s statutory declaration were the same as those identified in Ms Lang’s statutory declaration;

• she disagreed with the following matters contained in the Employer’s Form F17 statutory declaration:

“Schedule A – Table 2 on-call allowances below SCHADS. Current on-call allowance for weekdays is $17.96 and for weekends is $35.56.”

• the ASU does not want to be covered by the Enterprise Agreement. This is a change from the position taken by the ASU in October 2016.

[11] The ASU filed short written submissions dated 27 March 2017 “support[ing] the HSU’s submissions in this matter” and made supplementary submissions in relation to features of various levels of the Social, Community, Home Care and Disability Services Industry Award, 2010 (SCHADS Award). The ASU’s support for the submissions made by the HSU means, in effect, that the ASU now contends that the Enterprise Agreement should not be approved. The ASU also filed submissions in reply on 19 April 2017. No evidence has been adduced by the ASU to explain its change in position between October 2016 and March 2017.

[12] Each of the Employer, the ASU and HSU was offered the opportunity to, and did, make oral submissions at the hearing on 4 May 2017.

Issues in dispute

[13] In summary, the HSU and the ASU (collectively the Unions) submit that:

(a) the Enterprise Agreement fails to meet the “specified provisions of the Act as required under the National Employment Standards”;

(b) the Enterprise Agreement fails to meet the better off overall test (BOOT); and

(c) while the provision of undertakings could rectify many of the issues raised by the Unions, such undertakings would substantially change the nature of the agreement put to the Employees for their vote in 2016.

[14] The Employer has given a number of undertakings to address issues raised by the Unions and the Commission. A signed copy of those undertakings dated 5 May 2017 (Undertakings) is attached to this decision.

[15] The Employer submits that the relevant statutory requirements have been satisfied and the Enterprise Agreement should be approved. 3

[16] I will address the detailed submissions made by the Unions and the Employer, together with the relevant information in the Form F16, Form F17 and Form F18s filed in these proceedings, when I consider each relevant issue below.

Agreement flexibility

[17] The Unions submit that the Enterprise Agreement contains a flexibility term that does not meet the requirements set out in s.203(6) of the Act, in that it does not provide for termination of the individual flexibility arrangement by consent between the employer and the employee. I agree with this submission, as does the Employer. As a result, the Employer has been put on notice that the model flexibility term will be taken to be a term of the Enterprise Agreement if it is approved. 4

National Employment Standards (NES)

Termination of employment

[18] The Unions submit that clause 17 of the Enterprise Agreement fails to meet the notice of termination requirements under s.117 of the Act, in that the clause does not provide for an additional week’s notice to an employee who is more than 45 years old and has completed at least two years of continuous service. That is correct for employees with at least five years’ continuous service, because clause 17.1 of the Enterprise Agreement requires the Employer to give all employees, save for those in their six month qualifying period, four weeks’ notice of termination. The Employer has provided an undertaking which addresses this issue (Undertaking 3).

Annual leave

[19] The Unions submit that the annual leave provisions in the Enterprise Agreement do not meet the NES in the following ways:

(a) clause 31 of the Enterprise Agreement does not provide an entitlement to five weeks’ annual leave to any employee who is a shiftworker; 5 and

(b) clause 31 of the Enterprise Agreement does not “clearly” provide that an employee is not regarded as being on annual leave on a public holiday or other periods of paid leave.

[20] I agree with the submission set out in subparagraph [19(a)] above. The Employer has provided an undertaking to address the issue of shiftworkers being entitled to five weeks’ annual leave (Undertaking 9).

[21] I do not accept the submission set out in subparagraph [19(b)] above. The Enterprise Agreement is silent in relation to what happens if there is a public holiday or other period of paid leave during an employee’s period of annual leave. Clause 7 of the Enterprise Agreement provides that “the NES and this Agreement contain the minimum conditions of employment for employees covered by this Agreement.” It is clear from this provision that where the Enterprise Agreement is silent on a particular topic or entitlement it does not seek to exclude the NES or any provision of the NES. Instead, where the Enterprise Agreement does not deal with a particular topic or entitlement covered by the NES, the rights and obligations of the Employer and its employees covered by the Enterprise Agreement in relation to that particular topic or entitlement are governed by the NES. 6 It follows that ss.89(1) and (2) of the Act will determine the parties’ rights and liabilities insofar as the matters referred to in paragraph [19(b)] are concerned.

Personal leave

[22] The Unions submit that the Enterprise Agreement fails to provide for personal leave to accrue progressively throughout the year, contrary to s.96(2) of the Act. I do not accept this submission. Clause 32.1 of the Enterprise Agreement provides that “full-time employees will be entitled to 13 days personal leave every 12 months which accrues.” However, the clause is silent on how the leave accrues, leaving that to the NES (s.96(2) of the Act).

[23] The Unions submit that the Enterprise Agreement fails to provide for personal/carer’s leave to be taken for members of an employee’s household, contrary to s.97(b) of the Act. The Employer has provided an undertaking to address this issue (Undertaking 12).

[24] The Unions submit that the personal leave provisions of the Enterprise Agreement fail to provide for an employee not to be on such leave on a public holiday, contrary to s.98 of the Act. I disagree. Clause 32 of the Enterprise Agreement does not seek to exclude s.98 of the Act; rather, it is silent on the question of personal/carer’s leave being taken on a day that is a public holiday, with the result that s.98 of the Act governs the parties’ rights and obligations in that regard.

[25] The Unions submit that the Enterprise Agreement fails to provide for unpaid carer’s leave, contrary to s.102 of the Act. I disagree. Clause 32.1 of the Enterprise Agreement does not expressly state whether the “13 days personal leave” is paid or unpaid. However, it is clear, in my view, from the references to “half pay” and “paid leave” in clause 32.6 and “paid out” in clause 32.7 that, on the proper construction of the Enterprise Agreement, the reference to “13 days personal leave” in clause 32.1 is to paid personal/carer’s leave. The Enterprise Agreement is silent on the question of unpaid carer’s leave. It follows that the parties’ rights and obligations in relation to unpaid carer’s leave will, during the operation of the Enterprise Agreement, be governed by ss.102 and 103 of the Act.

[26] The Unions submit that the provisions for evidence and notice for leave under s.107 of the Act require “‘evidence that would satisfy a reasonable person’ as opposed to the more restricted provisions under cl 32.4 and 32.5.” The Unions also contend that the broader provisions of the NES concerning evidence and notice for taking leave “negate the narrow hard-line provisions [of the Enterprise Agreement] which only allow for ‘medical certificates’. This is certainly the case for an employee seeking carer’s leave.”

[27] The first relevant matter to note is that the evidence and notice requirements set out in clauses 32.4 and 32.5 of the Enterprise Agreement only apply to paid personal/carer’s leave, and do not apply to compassionate leave or unpaid carer’s leave.

[28] Secondly, ss.55(2)(a) and 107(5) of the Act permit the inclusion in an enterprise agreement of terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave. The purpose of s.107(5) is to permit an employer and its employees to negotiate and include in an enterprise agreement terms which provide certainty as to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave, rather than leaving open for dispute whether the employee has in a particular case provided “evidence that would satisfy a reasonable person” of the reason for their leave. In my opinion, clause 32.4 of the Enterprise Agreement is a term permitted by s.107(5) of the Act, because it requires an employee to provide a “medical certificate issued by a registered health practitioner if the personal/carer’s leave exceeds either two consecutive working days, five occasions in a year, or is required by the employer.” Evidence of that kind would clearly satisfy a reasonable person that the personal/carer’s leave was being taken for the requisite reason (s.107(3) of the Act).

[29] Thirdly, s.107 of the Act does not permit the inclusion of a term in an enterprise agreement which contains notice provisions relating to the taking of leave which are more onerous on employees than those set out in s.107(2) of the Act. In my view, the requirement in clause 32.5 of the Enterprise Agreement on an employee to “in any event” report to the Employer any absence “before commencement of shift or normal start time” excludes the right of an employee under s.107(2)(a) of the Act to notify their employer of the taking of personal/carer’s leave at “a time after the leave has started” if that time meets the requirement of being “as soon as practicable”. The Employer has provided an undertaking to address this issue (Undertaking 13).

Compassionate leave

[30] The Unions contend that clause 33 of the Enterprise Agreement fails to meet the requirements of s.104 of the Act. The Employer accepts that clause 33 of the Enterprise Agreement is narrower in scope than s.104 of the Act and has provided an undertaking to address this issue (Undertaking 14).

Parental leave

[31] The Unions contend that the parental leave provisions of the Enterprise Agreement (clause 36) fail to meet the NES requirements in the following ways:

(a) there is no provision for unpaid special maternity leave. Although clause 36.2(k) of the Enterprise Agreement provides for sick leave in the event of a miscarriage, the Unions contend there is no provision which meets the requirements of s.80 of the Act insofar as it deals with unpaid special maternity leave which goes beyond miscarriage; and

(b) clause 36.2(j) of the Enterprise Agreement does not meet the requirements of s.81 (transfer to safe job) of the Act and there is no provision which meets the requirements of s.81A (paid no safe job leave).

[32] As to the submission in paragraph [31(a)] above concerning unpaid special maternity leave, I am satisfied that clauses 36.2(k) and (l) may exclude, in some circumstances, an employee’s right to a period of unpaid special maternity leave pursuant to s.80(1)(b) of the Act. The Employer has provided an undertaking to deal with this issue (Undertaking 15).

[33] As to the submission in paragraph [31(b)] above concerning safe job leave, the Employer has provided an undertaking to the effect that safe job leave will be provided to an employee in accordance with s.81A of the Act where no alternative position is available (Undertaking 16). I accept the Unions’ submission that clause 36.2(j) of the Enterprise Agreement does not have the same, or substantially the same, effect as the provisions of the NES. By way of example, clause 36.2(j) of the Enterprise Agreement permits the Employer to place an employee into a position “as close as possible in status and salary to her substantive position”, which may include a lower salary, whereas an employee has a right under s.80(4) of the Act to receive her “full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.” In this way, clause 36.2(j) has the potential to exclude a provision of the NES, contrary to s.55(1) of the Act. The Employer has provided an undertaking to address this issue (Undertaking 16).

Missing leave entitlements

[34] The Unions contend that the Enterprise Agreement “fails the NES and the BOOT” because it does not provide for unpaid leave entitlements which form part of the NES, such as leave to undertake eligible community service activity pursuant to s.108 of the Act. I reject this contention. Where the Enterprise Agreement is silent on a particular topic or entitlement it does not seek to exclude the NES or any provision of the NES. Instead, where the Enterprise Agreement does not deal with a particular topic or entitlement covered by the NES, the rights and obligations of the Employer and its employees covered by the Enterprise Agreement in relation to that particular topic or entitlement, such as eligible community service activity, are governed by the NES.

Better off overall test (BOOT)

Legal principles

[35] I must be satisfied that the Enterprise Agreement passes the BOOT before I can approve it. 7 Section 193(1) of the Act provides that an enterprise agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the enterprise agreement would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made.8

[36] In Armacell Australia Pty and Others 9the application of the BOOT was explained by the Full Bench in the following manner:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”

[37] The BOOT is not applied as a line by line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees. 10 An enterprise agreement may pass the test even if some award benefits have been reduced, as long as overall those reductions are more than offset by the benefits of the enterprise agreement.11

[38] Ultimately the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement. 12

[39] It is clear from the references to “each … employee” in section 193(1) of the Act that every employee to whom the enterprise agreement will, if approved, apply must be better off overall than if the relevant modern award applied to the employee; it is not enough that a majority or most of the employees to whom the enterprise agreement will, if approved, apply will be better off overall than if the relevant modern award applied.

[40] Section 193(7) of the Act is a facultative provision which permits the Commission to be satisfied, in particular circumstances, that all employees in a class of employees will be better off if the agreement applied to that class than if the relevant modern award applied to that class. Section 193(7) provides as follows:

“For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[41] Section 193(7) was explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“818. Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee's individual circumstances.” [emphasis added]

[42] It is also important to recognise that the BOOT is hypothetical, because it requires an assessment of whether each employee, and each “prospective award covered employee”, would be better off overall if the enterprise agreement applied to him or her than if the relevant award did. 13 The hypothetical nature of the BOOT analysis was explained in the following illustrative example in the Explanatory Memorandum to the Fair Work Bill 2008:14

“Illustrative example

Moss Hardware and Garden Supplies Pty Ltd makes an enterprise agreement to cover approximately 1800 employees working at its national chain of retail garden and hardware supplies outlets. All of these employees are 'award covered employees'. The seven classifications under the agreement broadly correlate to seven classifications under the relevant modern award. Because there will be many employees within each classification under the agreement and the agreement affects each employee within a classification in the same way, FWA could group employees together when assessing the employees against the better off overall test. It is intended that FWA could assess a hypothetical employee in each of the classifications under the agreement against the relevant classification under the modern award.

If FWA were satisfied that the agreement affected each employee within the classification in the same way, and that the agreement passed the better off overall test for the hypothetical employee within the classification, FWA could be satisfied that the agreement passed the better off overall test for each award covered employee and prospective award covered employee within that classification.” [emphasis added]

[43] An assessment must be made in each application for the approval of an enterprise agreement as to what are appropriate classes of employees for the purpose of determining whether the employees in each class would be better off overall if the agreement applied to that class than if the relevant modern award applied to that class. In some cases, there will be a close or exact match between the classifications in the enterprise agreement and those in a relevant modern award, with the result that it may be appropriate for the classes of employees to be the classifications in the enterprise agreement. In other cases, the classes may need to be more granular, such as a particular classification of employees who work a particular roster. This may be necessary if the enterprise agreement has different overtime and/or hour provisions than the relevant modern award. In each case it will be necessary to consider whether there is, or needs to be, any evidence concerning the question of whether it is appropriate or safe to assume that all employees in the class will be better off overall if the agreement applied to that class than if the relevant modern award applied to that class. 15

Relevant facts

[44] The “test time” for the Enterprise Agreement is 24 October 2016.

[45] There is no dispute and I am satisfied that the Employees are covered by one of the following modern awards:

• the SCHADS Award; or

• the Health Professionals and Support Services Award 2010 (HPSS Award).

[46] The Employer did not turn its mind to the fact that the HPSS Award was a reference instrument at the time of preparing its Form F17. That was an oversight which was not picked up by any of the bargaining representatives until the HSU raised the issue in its submissions of 27 March 2017. Notwithstanding this oversight, the Employer accepts, and I am satisfied, that the HPSS Award and the SCHADS Award are the relevant modern awards to be considered for the purpose of determining whether the Enterprise Agreement passes the BOOT.

Classes of employees for BOOT

[47] The classification definitions in the Enterprise Agreement are different from those in the relevant modern awards.

[48] The Employer and the Unions are in dispute in relation to the matching of various classifications under the Enterprise Agreement against the appropriate classifications under the SCHADS Award.

[49] The Employer attached to its Form F17 statutory declaration in support of its application for approval of the Enterprise Agreement a table that identifies how the classifications in the Enterprise Agreement relate to the classifications in the SCHADS Award. That table relevantly provides as follows:

Enterprise Agreement Classification	SCHADS Award Classification
Level 1 Min	Level 1, Pay Point 1
Level 1 Max	Level 1, Pay Point 1
Level 2 Min	Level 1, Pay Point 2
Level 2 Max	Level 1, Pay Point 3
Level 3 Min	Level 2, Pay Point 1
Level 3 Max	Level 2, Pay Point 4
Level 4 Min	Level 2, Pay Point 1
Level 4 Max	Level 2, Pay Point 4
Level 5 Min	Level 3, Pay Point 1
Level 5 Max	Level 3, Pay Point 4
Level 6 Min	Level 4, Pay Point 1
Level 6 Max	Level 4, Pay Point 4

[50] The Employer’s classification transition table also includes a note to the effect that “employees who commence on level 1 will remain on level 1 for no more than 12 months”.

[51] The classification definitions for levels 1, 2 and 3, Group 1 Supports in Schedule B of the Enterprise Agreement are set out in Annexure A to this decision.

[52] The classification definitions for social and community services employee levels 1, 2 and 3 in Schedule B of the SCHADS Award are set out in Annexure B to this decision.

[53] The table below compares the characteristics and responsibilities of levels 1, 2 and 3 under the Enterprise Agreement against the various levels in the SCHADS Award:

EA Level	Characteristics/Responsibilities in EA classification	Most comparable characteristic or responsibility in SCHADS Award
Level 1	Characteristics:	Characteristics:
	“A person employed on this level may include the initial recruit who may have limited relevant experience.”	“A person employed as a Social and community services employee level 1 … may include the initial recruit who may have limited relevant experience.” [SCHADS Level 1 - B.1.1(a)]
	“Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.”	“Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.” [SCHADS Level 1 - B.1.1(d)]
	“Employee’s duties at this level will be closely monitored with instruction and assistance being readily available.”	Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.” [SCHADS Level 1 - B.1.1(b)]
	Responsibilities:	Responsibilities:
	“Provide support for the full range of domestic duties including cleaning and meal preparation, under general supervision either individually or as part of a team as part of the delivery of disability services.”	“Preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(h) – the minimum pay rate for employees engaged in (h) responsibilities is pay point 2]
	“Provide support to clients in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.”	“Resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(g)]
	“Transporting and assisting clients to access the community.”	- [Nothing comparable in SCHADS Award]
	“Administer medication, as required.”	- [Nothing comparable in SCHADS Award]
Level 2	Characteristics:	Characteristics:
	“A person employed on this level works under direction and undertakes routine activities which require the practical application of basic skills and techniques.”	“A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques.” [SCHADS Level 1 – B.1.1(a)]
	“General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable.”	“General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available” [SCHADS Level 1 – B.1.1(b)]
	“Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgement in the planning of their own work within those confines.”	“Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.” [SCHADS Level 1 – B.1.1(c)]
	“Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.”	“Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.” [SCHADS Level 1 – B.1.1(e)]
	“Supervision of other staff or volunteers is not a feature of this level. However, an experienced employee may have technical oversight of a minor work activity.”	“Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.” [SCHADS Level 1 – B.1.1(f)]
	Responsibilities:	Responsibilities:
	“Provide support for the full range of domestic duties including cleaning and meal preparation, under general supervision either individually or as part of a team as part of the delivery of disability services.”	“Preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(h) – the minimum pay rate for employees engaged in (h) responsibilities is pay point 2]
	“Provide support to clients in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.”	“Resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(g)]
	“Transporting and assisting clients to access the community.”	[Nothing directly comparable in SCHADS Award]
	“Assisting in the development or implementation of resident care plans.”	“Assisting in the development or implementation of resident care plans” [SCHADS Level 2 - B.2.2(m)]
	“Administer medication, as required.”	[Nothing comparable in SCHADS Award]
Level 3	Characteristics:	Characteristics:
“A person employed at this Level will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.”	“A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge. [SCHADS Level 2 – B.2.1(a)]
“Employees contribute specific knowledge and/or specific skills to the work of the organisation.”	“Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation.” [SCHADS Level 2 – B.2.1(b)]
“Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures.”	“Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.” [SCHADS Level 2 – B.2.1(c)]
“Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees.”	“Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers.” [SCHADS Level 2 – B.2.1(d)]
Responsibilities:	Responsibilities:
“Undertake a range of activities related to supporting customers to acquire the necessary vocational and life skills to access further training, education and/or employment requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines.”	“Undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines.” [SCHADS Level 2 – B.2.2(a)] “Implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 2 – B.2.2(k)]
“Assist senior employees with special projects.”	“Assist senior employees with special projects.” [SCHADS Level 2 – B.2.2(d)]
“Supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services. This does not include the formal supervision and management of staff.”	“Provide limited guidance to a limited number of lower classified employees.” [SCHADS Level 2 – B.2.2(d)] “Supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 2 – B.2.2(l)]
“In the case of Support Connectors, undertakes a range of activities related to supporting the customer as defined by the service offering and agreement with the customer, program guidelines and procedures.”	“Implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 2 – B.2.2(k)]

[54] It is clear from the comparison set out in the table in the previous paragraph that there is a close alignment between the characteristics and responsibilities of:

• a level 1 (group 1 – Supports) employee under the Enterprise Agreement and a level 1 social and community services employee under the SCHADS Award;

• a level 2 (group 1 – Supports) employee under the Enterprise Agreement and a level 1 social and community services employee under the SCHADS Award; and

• a level 3 (group 1 – Supports) employee under the Enterprise Agreement and a level 2 social and community services employee under the SCHADS Award.

[55] The SCHADS Award classifications do not expressly address the responsibilities of “transporting and assisting clients to access the community” or “administer medication, as required”. However, one of the responsibilities for a level 1 social and community services employee under the SCHADS Award is to “undertake routine activities which require the practical application of basic skills and techniques.” [SCHADS level 1 – B.1.1(a), emphasis added]. This could include assisting clients to use public transport to access the community or “administer medication, as required” at a basic level.

[56] The Unions submits that:

(a) the key difference between a level 1 and level 2 worker under the SCHADS Award is the following:

• SCHADS clause B.1.2(g) level 1 responsibilities include “resident contact and interaction including attending to their personal care or undertaking generic domestic duties”; and

• SCHADS clause B.2.2(k) and (m) level 2 responsibilities include “implementing client skills and activities programmes” and “assisting in the development or implementation of resident care plans”

(b) an essential feature of disability support work is the facilitation of living skills through the implementation of resident care plans. Facilitation of living skills is not something contemplated by level 1 of the SCHADS Award. A disability support worker cannot therefore be classified at level 1 of the SCHADS Award;

(c) the Support Worker position descriptions produced by the Employer in these proceedings in response to an order for the production of documents are consistent with the descriptors found in at least level 2 of the SCHADS Award;

(d) the National Disability Insurance Agency has priced disability support work at level 2.3 of the SCHADS Award. Funding to participants is provided for the provision of disability support work and a minimum of level 2.3 of the SCHADS Award; and

(e) the consequences of approving an enterprise agreement which allows for the classification of disability support work at level 1 of the SCHADS Award are far more serious than potential under classification of employees engaged by the Employer. The approval of the Enterprise Agreement could allow for the National Disability Insurance Agency to reduce funding to the NDIS from the current level 2.3 of the SCHADS Award to level 1 which would exacerbate the already substantial problems of attracting and retaining skilled staff and undermine the quality of support provided to the most vulnerable in our society.

[57] The Unions also rely on the position descriptions produced by the Employer to support their contention that a Support Worker 2 employed by the Employer should be classified as level 2 under the SCHADS Award.

[58] As to the submissions in paragraph [56(a)] above, attending to “personal care” tasks falls squarely within level 1 of the Enterprise Agreement. “Implementing client skills and activities programmes” is not referred to in the classification definitions in the Enterprise Agreement. The responsibility of “assisting clients to access the community” may be one way in which an employee could “implement client skills and activities programmes”. The responsibility of “assisting clients to access the community” is a feature of levels 1 and 2 of the Enterprise Agreement. The responsibility of “assisting in the development or implementation of resident care plans” in level 2 of the Enterprise Agreement is not replicated in terms in level 1 of the SCHADS Award, but is replicated in terms in level 2 of the SCHADS Award. That provides some support for the Unions’ argument that level 2 under the Enterprise Agreement best correlates with level 2 under the SCHADS Award. However, assisting in the implementation of a resident care plan would include undertaking, or assisting in undertaking, the tasks and activities specified in the resident care plan for a client. Such responsibilities may be at a basic level and could include such things as “providing support to clients in carrying out personal care tasks”, which is within the scope of level 1 under the Enterprise Agreement. Further, assisting in the development of a resident care plan suggests providing some level of assistance (which is not specified) to a more senior employee to develop the resident care plan.

[59] I do not accept the Unions’ submission in paragraph [56(b)] above that disability support work cannot be classified at level 1 of the SCHADS Award because an essential feature of disability support work is the facilitation of living skills, which is not something contemplated by level 1 of the SCHADS Award. The characteristics of a level 1 employee under the SCHADS Award include “assisting with personal care and lifestyle support” (B.1.1(e)) and the responsibilities of a level 1 employee under that award include:

• “Resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(g)]; and

• “Preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.” [SCHADS Level 1 - B.1.2(h)]

[60] The submissions in paragraphs [56(d) and (e)] concerning the National Disability Insurance Agency and funding to the NDIS are not supported by any evidence and were mostly disputed by the Employer in conferences held in these proceedings. In any event, they are not relevant to my assessment of the BOOT and I will not have regard to those matters in determining the application for approval of the Enterprise Agreement.

[61] I agree with the Employer’s contention that a level 2 social and community services employee under the SCHADS Award is required to apply a higher level of skilled knowledge and experience, and has more responsibility, than a level 2 (Group 1 – Supports) employee under the Enterprise Agreement, which supports the Employer’s submission that an employee classified as a level 2 (Group 1 – Supports) employee under the Enterprise Agreement would fall under the level 1 social and community services employee under the SCHADS Award. By way of example:

• a level 2 (Group 1 – Supports) employee under the Enterprise Agreement works under direction and undertakes routine activities which require the practical application of basic skills and techniques, whereas a level 2 social and community services employee under the SCHADS Award works under general guidance within clearly defined guidelines and undertakes a range of activities requiring the application of acquired skills and knowledge; and

• supervision of other staff or volunteers is not a feature of a level 2 (Group 1 – Supports) under the Enterprise Agreement, albeit an experienced employee at this level may have technical oversight of a minor work activity, whereas a level 2 social and community services employee under the SCHADS Award may be responsible for supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services.

[62] Similarly, a level 3 social and community services employee under the SCHADS Award is required to apply a higher level of skilled knowledge and experience, and has more responsibility, than a level 3 (Group 1 – Supports) employee under the Enterprise Agreement, which supports the Employer’s submission that an employee classified as a level 3 (Group 1 – Supports) employee under the Enterprise Agreement would fall under the level 2 social and community services employee under the SCHADS Award.

[63] In light of the close alignment between the characteristics and responsibilities of the classifications of employees in the Enterprise Agreement with the “matching” classifications in the SCHADS Award, as contended for by the Employer, coupled with the other matters referred to in paragraphs [55] to [62] above, I am satisfied that it is appropriate in the circumstances of this case to assess whether the Enterprise Agreement passes the BOOT by considering classes of employees defined by the classifications in the Enterprise Agreement. Because the Enterprise Agreement affects each employee within a classification in the same way, I can assess a hypothetical employee in each of the classifications under the Enterprise Agreement against the “matching” classification under the relevant modern award. For the reasons set out above, I agree with the Employer’s classification “matching”. 16

[64] I have reviewed the position descriptions for Support Workers produced by the Employer in response to an order for the production of documents and relied on by the Unions in these proceedings. I am satisfied that the position descriptions do not cause me to alter my assumption, under s.193(7) of the Act, that an employee in a particular classification under the Enterprise Agreement would be better off overall if the Enterprise Agreement applied to that class than if the relevant modern award applied to that classification of employee. I make that finding for the following reasons:

• Schedule B of the Enterprise Agreement sets out the classification definitions for different levels of employees within each group in the Employer’s business. For each level, the characteristics and responsibilities for an employee working at the level are described and one or more examples are given of positions at the level. For level 2 in Group 1 – Supports the position of Support Worker 2 is given as an example. Large numbers of employees are covered by some of the classifications in the Enterprise Agreement, including about 680 employees in the position of Support Worker 2. Some of those Support Worker 2 employees have position descriptions, others do not. The position descriptions produced for that position vary, according to factors such as the time when the person was employed and who their line manager is or was at the commencement of their employment;

• whether one or more employees classified by the Employer as a Support Worker 2 is properly classified as a level 2 employee under the Enterprise Agreement is a question of fact (often a complex question of fact) to be determined on an individual case by case basis having regard to all of the circumstances. A position description will be relevant to any determination of the proper classification for a particular employee, but it is not determinative. Whether a “principal purpose” or other similar test is applied, “it is the work of the employee that is considered relevant in that regard”. 17 It is open to any employee, or a union on their behalf, to challenge the Employer’s assessment of their classification under the Enterprise Agreement at any time after the Enterprise Agreement commences operating;18 and

• for the reasons set out elsewhere in this decision, I can be comfortably satisfied that if a hypothetical employee is properly classified at a particular classification under the Enterprise Agreement then they, and each employee properly classified in that classification, would be better off overall if the Enterprise Agreement applied to them than if the relevant modern award applied to them. I do not consider it appropriate or necessary in the circumstances of this case to use the actual positions in which employees are employed, such as Support Worker 2, as the classes of employees for the purpose of s.193(7) of the Act.

[65] I have also had regard to the first instance and appeal decisions in HSU v Liviende Inc 19 (Liviende) in my determination of this matter. Liviende concerned a dispute about the wage rate payable to Residential Support Officers (RSOs) under an enterprise agreement. The dispute concerned the operation of s.206 of the Act.

[66] At first instance in Liviende, Commissioner Johns 20 decided that, for the purposes of s.206 of the Act, the assessment is undertaken on the basis of a descriptor to descriptor comparison between the enterprise agreement and the relevant award, as well as an assessment of where the work the RSOs perform fits within the classification levels in the relevant award. The position descriptions were relevant to the work of the RSOs. There was no appeal against Commissioner Johns’ decision, but there was an appeal against a decision by Commissioner Cribb21 applying the principles articulated by Commissioner Johns. The Full Bench dismissed the appeal.

[67] As noted by Commissioner Johns 22, similar language is used in ss.193 and 206 of the Act. However, the test under s.193 is a hypothetical one in which the Commission is required to determine whether employees to whom the enterprise agreement, if approved, would apply would be better off than if the relevant modern award applied to them, whereas the inquiry under s.206 of the Act is focused on whether the base rate of pay payable to a particular employee to whom an enterprise agreement applies is not less than the base rate of pay that would be payable to the employee if the modern award applied to them. It may be necessary or appropriate when considering an application for the approval of a particular enterprise agreement to obtain evidence of the work performed by a particular employee or group of employees, whether from a position description or oral evidence by persons employed in the position, to be satisfied that each employee in the classes of employees under consideration would be better off overall under the Enterprise Agreement,23 but that is not required in every case; in fact, it is rarely required. In contrast, it will always be necessary for evidence to be given of the work performed by the particular employee(s) in an application under s.206 of the Act.

Less beneficial terms

Part-time employees’ overtime for HPSS Award covered employees

[68] The Unions submit that clause 28.1(d) of the HPSS Award entitles part-time employees to overtime rates of pay when they work additional hours over and above their agreed hours, whereas the Enterprise Agreement does not require the payment of overtime until a part-time employee works more than 10 hours in a day, 76 hours in a fortnight, on a Sunday, or on a public holiday. That is correct, subject to the qualification that a part-time covered by the Enterprise Agreement can agree to work in excess of their rostered ordinary hours at the ordinary time rate of pay up to the ceiling of hours set out in the previous sentence (clause 14.3(b)(ii)); if the Employer requires a part-time employee covered by the Enterprise Agreement to work reasonable overtime it must pay the employee overtime rates (clause 23.1). This consensual aspect of the Enterprise Agreement ameliorates the difference between the overtime provisions in the Enterprise Agreement compared to the HPSS Award, but the fact that part-time employees to whom the HPSS Award applies are entitled to overtime rates for all work in excess of their agreed hours means, in my view, that, for part-time employees covered by the HPSS Award, the overtime provisions in the Enterprise Agreement are less beneficial compared to the relevant modern award.

Overtime

[69] The HPSS Award permits an employer to roster an employee to work up to 10 ordinary hours in a day (clause 23.2). Under the SCHADS Award an employee’s ordinary hours of work per day will be a maximum of eight hours or, if the employee agrees, up to 10 hours (clause 25.1). Overtime is payable under the SCHADS Award for all work done in addition to a full-time employee’s rostered ordinary hours on any day (clause 28.1(a)). Although the Enterprise Agreement provides, subject to one exception which I address in the following paragraph, for all time worked by employees in excess of 10 consecutive hours to be paid at overtime rates, time worked up to 10 hours per shift is not regarded as overtime (clause 26.1). Because an employee can be required to work up to 10 ordinary hours per day under the Enterprise Agreement, in contrast to the situation under the SCHADS Award where an employee must agree to work ordinary hours between eight and 10 in a day, the overtime provisions in the Enterprise Agreement are, to this extent, less beneficial to employees than the overtime provisions in the SCHADS Award.

[70] Clause 26.1 of the Enterprise Agreement envisages the possibility of there being “alternative arrangements” to the requirement to pay overtime for work in excess of 10 consecutive hours in the day. I agree with the Employer’s submission that the only “alternative arrangements” to which reference is made in clause 26.1 of the Enterprise Agreement are the time off in lieu of overtime (TOIL) provisions in clause 26.2. I compare the TOIL provisions in the relevant instruments in paragraphs [76] to [78] below.

Rest period after overtime

[71] The relevant provisions of the Enterprise Agreement are as follows:

“26f) When overtime work is necessary it shall wherever reasonably practical be so arranged that employees have at least eight consecutive hours off duty between the work on successive days or shifts.

g) An employee who works so much overtime between the termination of his/her ordinary work on any shift and the commencement of his/her ordinary work on the next day or shift that he/she has not had at least eight consecutive hours off duty between these time shall be released after completion of such overtime until he/she has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

h) If on the instruction of the employer an employee resumes or continues to work without having had eight consecutive hours off duty, he/she shall be paid an allowance of 100% until he/she is released from duty for such a period that he/she has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.”

[72] The SCHADS Award contains the following relevant provisions in clause 28.3:

“(a) An employee, other than a casual, who works so much overtime between the termination of their ordinary work on any day or shift and the commencement of the ordinary work on the next day or shift that they have not had at least 10 consecutive hours off duty between those times, will be released after completion of such overtime until they have had 10 consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.

(b) If, on the instructions of the employer, such an employee resumes or continues work without having had 10 consecutive hours off duty, they will be paid at that rate of double time until they are released from duty for such rest period and they will then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.”

[73] The rest after overtime provisions in the HPSS Award are materially the same as those contained in the SCHADS Award, save that they do not exclude casual employees (clause 28.2 of the HPSS Award).

[74] The Employer submits that only Level 1 and 2 employees will ever be required to commence work less than 10 hours after ceasing work, and that this arrangement generally occurs by agreement with employees who live in close proximity to the workplace. No undertakings were given by the Employer in relation to these matters.

[75] I am satisfied that the rest after overtime provisions in the Enterprise Agreement are less beneficial to employees than the corresponding provisions in the SCHADS Award and the HPSS Award, primarily as a result of the difference between the 10 hour break under the relevant awards and the break of at least eight hours, “wherever reasonably practical”, under the Enterprise Agreement.

TOIL

[76] The Unions submit that the TOIL provisions of the Enterprise Agreement do not “meet the BOOT for either award”. In particular the Unions submit that both awards “clearly provide that an employee cannot be required to use TOIL, provide for the relevant rate of payment if overtime is paid, and prescribe the maximum time an employee can hold TOIL before being paid overtime rate.”

[77] TOIL is dealt with in clause 26.2 of the Enterprise Agreement, clause 28.2 of the SCHADS Award, and clause 28.3 of the HPSS Award. Importantly, clause 28.2 of the SCHADS Award was amended on 14 December 2016 24 by deleting the previous provision and inserting a new provision. Because the “test time” for the Enterprise Agreement is 24 October 2016, I must have regard to clause 28.2 of the SCHADS Award as at 24 October 2016, not as it was amended in December 2016.

[78] Clause 26.2 of the Enterprise Agreement contains safeguards for employees including the fact that an arrangement for an employee to work additional hours and take subsequent time off in lieu needs to be agreed between the employer and employee prior to the additional hours being worked and time off in lieu of additional hours accrues on an hour for hour basis. However, the right of an employee to be “compensated by way of time off in lieu of overtime” under clause 26.2 of the Enterprise Agreement is “subject to the employer’s time off in lieu policy”. That policy is not incorporated into the Enterprise Agreement and may be amended by the Employer. That is not beneficial to employees when compared to the relevant award provisions. Further, I am satisfied that the TOIL provisions in the Enterprise Agreement are less beneficial to employees than those in the SCHADS Award and the HPSS Award because the TOIL provisions in the Enterprise Agreement do not require the Employer to pay an employee overtime (at overtime rates) in respect of TOIL in particular circumstances, such as if the employee has not been able to use their TOIL within a particular period of time or on termination of employment.

Various allowances

[79] The Unions submit that the Enterprise Agreement does not make any provision for a first aid allowance, heat allowance, clothing, uniform or laundry allowance, nauseous work allowance, occasional interpreting allowance, or tool allowance, all of which apply in one or both underlying awards.

[80] The Employer submits that those allowances are for the most part not applicable to work undertaken by its employees. It further submits that the first aid allowance is the only allowance that will be applicable for a number of the Employer’s staff. That allowance is currently $0.42 per hour.

[81] I accept that most of these additional allowances will not be applicable to most of the work undertaken by employees of the Employer who are covered by the Enterprise Agreement, however some of the allowances would be payable in particular circumstances, including the first aid allowance. It follows that the absence of provisions in the Enterprise Agreement concerning these various allowances is, to some extent, less beneficial to employees compared to the relevant provisions in the SCHADS Award and the HPSS Award.

More beneficial terms

Part-time employees’ overtime for SCHADS Award covered employees

[82] The overtime provisions of the SCHADS Award for part-time employees are substantially the same as in the Enterprise Agreement, save for the requirement to obtain the agreement of an employee under clause 14.3(b)(ii) of the Enterprise Agreement to work in excess of their rostered ordinary hours at the ordinary time rate of pay (up to 10 hours in a day, after which overtime rates are payable). 25 That is a benefit provided to part-time employees under the Enterprise Agreement and it is not replicated or otherwise provided for in the SCHADS Award.

Personal leave

[83] Clause 32 of the Enterprise Agreement provides an entitlement to 13 days’ paid personal/carer’s leave per year for full-time employees, and a pro rata entitlement for part-time employees. The SCHADS Award and the HPSS Award state that personal/carer’s leave is provided for in the NES, which establishes an entitlement to 10 days of paid personal/carer’s leave per year.

[84] The Enterprise Agreement also provides additional benefits for employees with respect to using personal leave in situations of family violence (clause 32.8) and taking leave at half pay for long-term illnesses (clause 32.6).

[85] The evidence and notice provisions in the Enterprise Agreement associated with paid personal/carer’s leave are different, in some respects, with the provisions set out in s.107(2) and (3) of the Act, but in my view they are not, on balance, less beneficial to employees than the underlying awards (which direct attention to the NES provisions). 26

[86] For the reasons set out in the previous three paragraphs, I am satisfied that the personal/carer’s leave provisions in the Enterprise Agreement (including the Undertakings) are more beneficial to employees than the corresponding provisions in the underlying awards.

Wages

[87] The minimum wage rates for employees covered by the Enterprise Agreement are set out in Schedule A to the Enterprise Agreement (clause 19.1(a)). The Enterprise Agreement provides for the minimum wage rates in the Enterprise Agreement to be increased in line with any Annual Wage Case increases or Equal Remuneration Order increases during the operation of the Enterprise Agreement (clause 19.1(b)).

[88] The wage rates set out in table 1 of Schedule A to the Enterprise Agreement are in bands for each classification of employee, save for health professionals. However, the Enterprise Agreement does not contain any mechanism or procedure for an employee to move from the wage rate at the bottom of the band to any other wage rate within the scope of the band. In contrast, the SCHADS Award provides a mechanism for progression by an employee to higher pay points within an award classification (clause 13.3). Having regard to those matters, I am of the view that I should compare the minimum wage payable (at the bottom of the band) under the Enterprise Agreement for a particular classification against each of the pay points in the matching classification under the SCHADS Award for the purpose of applying the BOOT.

[89] Both the Unions and the Employer have provided wage comparison tables in which they compare wages payable from December 2016 under the Enterprise Agreement against those under the SCHADS Award and the HPSS Award, following a SCHADS Award increase in December 2016 flowing from the Equal Remuneration Order of the Commission. However, pursuant to s.193(1) of the Act I must consider, as at the test time (24 October 2016), whether each award covered employee, and each prospective award covered employee, for the Enterprise Agreement would be better off overall if the Enterprise Agreement applied to the employee than if the relevant modern award applied to the employee.

[90] Following the hearing on 4 May 2017, the Employer provided a revised table comparing pay rates under the Enterprise Agreement compared with those under the SCHADS Award (for Group 1, 2 and 3 employees) and the HPSS Award (for Group 4 – Health Professionals) as at 24 October 2016. A copy of that table is Annexure C to this decision. It is apparent from Annexure C that, apart from a few classifications of employees, the pay rates under the Enterprise Agreement exceed those under the applicable modern award by between 1% and 29%. The Employer has provided undertakings to ensure that the pay rates for all employees covered by the Enterprise Agreement will exceed those payable under the applicable modern award (Undertaking 18). The Unions accept that Undertaking 18 achieves that objective.

[91] These higher rates of pay under the Enterprise Agreement flow through to all monetary entitlements based on the classification rate of pay under the Enterprise Agreement, including annual leave, personal and long service leave, overtime, casual loadings, and shift allowances. I have made specific reference to some of these items individually elsewhere in this decision, but it is important to recognise and give weight in an overall BOOT assessment to the flow on effects of higher rates of pay. 27

Casual conversion

[92] The Enterprise Agreement entitles casual employees to request conversion to permanent employment if they have been rostered on a regular and systematic basis over a period of 26 weeks (clause 14.5). The Employer cannot unreasonably withhold its consent to such a request (clause 14.5(b)). This is a material benefit to casual employees which is not available under the relevant modern awards.

Redundancy and notice

[93] The redundancy and notice provisions in the Enterprise Agreement are more generous to employees than those in the relevant modern awards (clauses 17 and 18).

Paid maternity leave

[94] Under the Enterprise Agreement employees are entitled to 12 weeks’ paid maternity leave and two weeks’ paid partner leave after two years of continuous service (clause 36). These benefits are not provided under the relevant modern awards.

NAIDOC week leave

[95] Aboriginal and Torres Strait Islander employees are entitled under the Enterprise Agreement to paid leave for one day each year to participate in NAIDOC week activities (clause 38). No such benefit is provided under the relevant modern awards.

Special disaster leave

[96] Employees are entitled under the Enterprise Agreement to one day’s paid leave (per occasion) if they are absent from work as a direct result of adverse weather conditions or natural disaster (clause 39). No such leave is provided under the relevant modern awards.

Representative leave

[97] Under the Enterprise Agreement a maximum of two workplace delegates will be granted up to a maximum of five days per calendar year paid leave to attend union training, workshops, courses, seminars and/or conferences (clause 40). No such benefit is provided under the relevant modern awards.

Partly more beneficial and partly less beneficial terms

Part-time employees’ rosters and hours of work

[98] The Unions submit that clause 14.3 (part-time employees) of the Enterprise Agreement, “at least to the extent of a prospective employee understanding their entitlement to a fixed roster, arguably fails to meet the BOOT by not providing in detail for the agreement on hours, start and finish times and day of the week as provided in the SCHADS Award.”

[99] The first answer to this submission is that an enterprise agreement does not “fail to meet the BOOT” simply because it contains one provision that is less beneficial than a relevant modern award. The Act requires an overall assessment of advantages and disadvantages between the enterprise agreement under consideration and the relevant award(s). 28

[100] Clauses 10.3(a) and (b) of the SCHADS Award provide that:

“10.3 Part-time employment

(a) A part-time employee is an employee who is engaged to work less than the full-time hours of an average of 38 hours per week and who has reasonably predictable hours of work…

(b) Before commencing employment, the employer and the employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. Any agreed variation to the regular pattern of work will be recorded in writing.”

[101] Clause 10.3(a) to (c) of the HPSS Award provide as follows:

“10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or an average of less than 38 hours per week and who has reasonably predictable hours of work…

[102] Clause 14.3 governs the hours of work and rosters for part-time employees covered by the Enterprise Agreement:

“14.3 Part-time employment

a) A part-time employee is an employee who is permanently engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work.

b) (i) Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked each week and the rostering arrangements which will apply to those hours.

…

d) The terms of the agreement in (b) may be varied by agreement and recorded in writing.

…

f) Wherever practicable, the offer of additional hours or shifts will be made to part-time employees in the first instance.

14.4 Annual review of part-time hours

a) At the written request of an employee, the hours worked by the employee will be reviewed annually. Where the employee is regularly working more than their specified contract hours then such contract hours shall be adjusted by the employer, to reflect the hours regularly worked. The hours worked in the following circumstances will not be incorporated in the adjustment:

(i) if the increase in hours is as a direct result of an employee being absent on leave, such as for example, annual leave, long service leave, maternity leave, workers compensation; and

(ii) if the increase in hours is due to a temporary increase in hours only due, for example, to the specific needs of a resident.

b) Any adjusted contracted hours resulting from a review, should, however, be such as to readily reflect roster cycles and shift configurations utilised at the workplace.

[103] Clause 14.3(a) of the Enterprise Agreement has substantially the same effect as clause 10.3(a) of the SCHADS Award and clause 10.3(a) of the HPSS Award.

[104] In my view, clause 14.3(b) of the Enterprise Agreement is less beneficial to prospective part-time employees than clauses 10.3(b) of the SCHADS Award and the HPSS Award, because those award provisions provide prospective part-time employees with greater certainty in relation to the precise number of hours they will be rostered to work (as opposed to a guaranteed minimum number of hours) and precisely when such hours will be worked each week.

[105] In my assessment, clauses 14.3(f) and 14.4 of the Enterprise Agreement are more beneficial to part-time employees because they confer benefits not provided under the SCHADS Award or the HPSS Award.

Sleepover shifts

[106] A sleepover means where an employer 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 or an excursion (clause 25.3(a) of the Enterprise Agreement and clause 25.7 of the SCHADS Award).

[107] The Enterprise Agreement provides for the payment of a significantly increased sleepover allowance ($85) compared to the SCHADS Award ($44).

[108] The Unions point to the fact that the Enterprise Agreement only provides for additional payment for work in excess of one hour in total undertaken during a sleepover (clause 25.3(e) of the Enterprise Agreement), whereas the SCHADS Award provides that “in the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for time worked at the prescribed overtime rate with a minimum payment as for one hour worked” (clause 25.7(e)). The Unions submit that this difference has a further impact where an employee does more than two hours work during a sleepover period. Under the SCHADS Award the employee must be paid at double time for such work, whereas an employee would need to work at least three hours during the sleepover shift before they would receive pay at double time under the Enterprise Agreement.

[109] Under the Enterprise Agreement an employee is only required to perform work during a sleepover if the work is of an urgent nature, such as the administration of medication, to assist with transferring a client where there is a health or safety risk, whether as an emergency, or the provision of personal care (clause 25.3 (g) of the Enterprise Agreement). In light of this restriction on the work an employee may be required to undertake during a sleepover, I accept the Employer’s submission that it would be very rare for an employee to be required to perform at least three hours work during a sleepover shift. Indeed, if an employee ends up performing duties of a non-urgent nature during a sleepover shift, there is the prospect of an awake shift being considered and paid for by the Employer under the mechanism set out in clause 25.3(h) of the Enterprise Agreement.

[110] I also accept that, in order for an employee to receive less money under the Enterprise Agreement as compared to the SCHADS Award for a single sleepover shift, it would be necessary for the employee to be required to perform at least about three hours work during the sleepover shift. Given the rarity of such circumstances and the significant difference between the sleepover allowance under the Enterprise Agreement compared to the SCHADS Award ($85 v $44), I am satisfied that in the vast majority of cases the sleepover provisions in the Enterprise Agreement will, on balance, be more beneficial to employees than those in the SCHADS Award, but in rare circumstances those provisions may be less beneficial (eg where an employee only works one sleepover shift during the operation of the Enterprise Agreement and they are required to work in excess of three hours during that shift).

[111] The Unions also submit that clause 25.7(g) of the SCHADS Award enables disputes in relation to the sleepover provisions to be dealt with under the disputes settlement clause and “this reference is missing from the” Enterprise Agreement.

[112] The dispute resolution procedure in the Enterprise Agreement (clause 13) applies to disputes “in relation to a matter arising under this Agreement or the NES”. That clearly includes disputes in relation to a matter arising under the sleepover provisions in the Enterprise Agreement. Accordingly, there is no difference between the dispute resolution procedures in the Enterprise Agreement and the SCHADS Award insofar as they concern disputes about the sleepover provisions in either instrument.

Availability of rosters for shiftworkers

[113] Pursuant to clause 24.1 of the Enterprise Agreement, a roster cycle for a shiftworker is a period of four weeks. Clause 25.1(a) of the Enterprise Agreement provides as follows in relation to the display of rosters for shiftworkers:

“25.1 This clause only applies to shift workers.

a) The ordinary hours of work for each employee shall be displayed on a roster in a place conveniently accessible to employees. Such roster shall be displayed four weeks, but in any case at least one week, prior to the commencing date of the first working period in any roster. It is not obligatory for the employer to display any roster of ordinary hours of work for casual employees.”

[114] Clause 25.5(a) of the SCHADS Award provides for fortnightly rosters and for such roster is to be “posted at least two weeks before the commencement of the roster period”.

[115] The Unions contend that “while four weeks exceeds the notice under the award, one week undercuts clause 25.5 of the SCHADS Award which requires rosters to be at least two weeks in advance.”

[116] In my opinion, a longer roster cycle (four weeks) under the Enterprise Agreement compared to the SCHADS Award (two weeks) is beneficial to shiftworkers because it allows them to plan their lives outside of work further in advance.

[117] There is some ambiguity as to what is meant by the expression “shall be displayed four weeks, but in any case at least one week, prior to the commencing date” in clause 25.1 of the Enterprise Agreement. In my view, the proper construction of that expression is that it requires the Employer to ordinarily display rosters for shiftworkers four weeks prior to the commencement date of the first working period in the roster, but if there are reasonable grounds to do so the Employer may reduce the display period the roster from four weeks down to a minimum of one week. That is how a reasonable person in the position of the parties would, in my opinion, construe clause 25.1 of the Enterprise Agreement. Alternatively, the requirement for there to be reasonable grounds to reduce the display period from four weeks down to a minimum of one week may be implied into the clause. There is often a fine line between interpreting express terms and implying unexpressed terms. 29 Whichever path is taken in this case concerning clause 25.1 of the Enterprise Agreement, the outcome is, in my view, the same.

[118] Having regard to my view as to the proper construction of clause 25.1 of the Enterprise Agreement, in the ordinary case where rosters for shiftworkers are displayed for four weeks the Enterprise Agreement is more beneficial than the SCHADS Award. However, I accept that where the Employer reduces the display period for a roster from four weeks down to less than two weeks but no shorter than one week, the Enterprise Agreement will operate in a less beneficial way to shiftworkers than the SCHADS Award.

Meals

[119] The Unions submit that employees are worse off under the Enterprise Agreement compared to the relevant award because under the Enterprise Agreement no meal allowance is payable when an employee is working overtime.

[120] Under the Enterprise Agreement, an employee who is required or recalled to work additional hours following the completion of their normal shift and who works for more than two additional hours is entitled to a paid 20 minute meal break, together with a further 20 minute paid meal break after each subsequent four hours’ overtime (clause 27). In contrast, the SCHADS Award only provides for an employee to receive a 20 minute paid meal break if the employee is recalled to work overtime after leaving the employer’s or client’s premises and who works for more than four additional hours. A further paid 20 minute meal break is provided under the SCHADS Award after each subsequent four hours’ overtime (clause28.5(a)). In addition, the SCHADS Award obliges an employer to provide an employee who is entitled to paid meal break during overtime with either a meal free of charge or, where the employer was unable to provide such meals, a meal allowance, which is currently $12.48. The Enterprise Agreement does not require the employer to provide a meal or a meal allowance to an employee who is entitled to a paid meal break during the period of overtime.

[121] The Enterprise Agreement is more beneficial to employees than the SCHADS Award insofar as it requires the payment of a 20 minute meal break (a) after two additional hours of work, rather than four additional hours under the SCHADS Award, and (b) requires the payment of the meal break when an employee is required or recalled to work at least two additional hours, as distinct from only when the employee is recalled to work under the SCHADS Award. The Enterprise Agreement is less beneficial to employees than the SCHADS Award insofar as the SCHADS Award requires the provision of a free meal or payment of a meal allowance to an employee when they are entitled to a paid meal break during overtime, whereas the Enterprise Agreement does not provide any such benefit. For example, if an employee was recalled to work 4.5 hours overtime they would be entitled to a paid 20 minute meal break under either the Enterprise Agreement or the SCHADS Award, but they would only be entitled to a free meal or payment of a meal allowance under the SCHADS Award.

[122] The Enterprise Agreement is more beneficial to employees than the HPSS Award on the topic of meal breaks during overtime because under clause 28.5 of the HPSS Award an employer is only required to provide a 20 minute paid break to an employee after each four hours of overtime worked.

[123] The Enterprise Agreement is less beneficial to employees than the SCHADS Award insofar as the SCHADS Award requires, in circumstances where an employee is required to work during a meal break and continuously thereafter, the payment of overtime for all time worked until a meal break is taken (clause 27.1(b)), whereas the Enterprise Agreement provides that, “where an employee is called upon to work for any portion of the meal break, such time shall count as ordinary working time” (clause 27).

Transporting and assisting clients to access the community.

Administer medication, as required.

Examples:

Support Worker 1

Level 2

Following 12 months service at Level 1 and employee will be classified as a Level 2 so long as they demonstrate all the characteristics of a Level 2.

Characteristics:

A person employed on this level works under direction and undertakes routine activities which require the practical application of basic skills and techniques.

General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable.

Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgement in the planning of their own work within those confines.

Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.

Supervision of other staff or volunteers is not a feature of this level. However, an experienced employee may have technical oversight of a minor work activity.

Responsibilities:

Provide support for the full range of domestic duties including cleaning and meal preparation, under general supervision either individually or as part of a team as part of the delivery of disability services.

Provide support to clients in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.

Transporting and assisting clients to access the community.

Assisting in the development or implementation of resident care plans.

Administer medication, as required.

Examples:

Support Worker 2

Level 3

An employee may only be classified at this Level by appointment.

Characteristics:

A person employed at this Level will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.

Employees contribute specific knowledge and/or specific skills to the work of the organisation.

Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures.

Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees.

Responsibilities:

Undertake a range of activities related to supporting customers to acquire the necessary vocational and life skills to access further training, education and/or employment requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;

Assist senior employees with special projects;

Supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services. This does not include the formal supervision and management of staff.

In the case of Support Connectors, undertakes a range of activities related to supporting the customer as defined by the service offering and agreement with the customer, program guidelines and procedures.

Examples:

Employment Consultant 1, Support Worker 3, Support Worker Senior and Life Skills Educator.”

Annexure B – SCHADS Award Schedule B Classifications Definitions for
SACS employee Levels 1 to 3

[Varied by PR995399, PR995626, PR526106]
B.1 Social and community services employee level 1
B.1.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
(b) General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.
(c) Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.
(d) Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.
[B.1.1(e) varied by PR995399 ppc26Mar10]
(e) Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.
(f) Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.
(g) At this level, employers are expected to offer substantial internal and/or external training.
B.1.2 Responsibilities
A position at this level may include some of the following inputs or those of a similar value:

undertake routine activities of a clerical and/or support nature;

(b) undertake straightforward operation of keyboard equipment including data input and word processing at a basic level;
(c) provide routine information including general reception and telephonist duties;
(d) provide general stenographic duties;
(e) apply established practices and procedures;
(f) undertake routine office duties involving filing, recording, checking and batching of accounts, invoices, orders, stores requisitions and maintenance of an existing records system;
[B.1.2(g) inserted by PR995399 ppc 26Mar10]
(g) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services;
[B.1.2(h) inserted by PR995399 ppc 26Mar10]
(h) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.
The minimum rate of pay for employees engaged in responsibilities which are prescribed by A.1.1(h) is pay point 2.
B.1.3 Requirements of the position
Some or all of the following are needed to perform work at this level:

Skills, knowledge, experience, qualifications and/or training

(i) developing knowledge of the workplace function and operation;
(ii) basic knowledge of administrative practices and procedures relevant to the workplace;
(iii) a developing knowledge of work practices and policies of the relevant work area;
(iv) basic numeracy, written and verbal communication skills relevant to the work area;
(v) at this level employers are required to offer substantial on-the-job training.
(b) Organisational relationships
Work under direct supervision.
(c) Extent of authority
(i) Work outcomes are clearly monitored.
(ii) Freedom to act is limited by standards and procedures.
(iii) Solutions to problems are found in established procedures and instructions with assistance readily available.
(iv) Project completion according to instructions and established procedures.
(v) No scope for interpretation.
(d) Progression
[B.1.3(d) inserted by PR995399 ppc 26Mar10]
An employee primarily engaged in responsibilities which are prescribed by A.1.1(g) will, if full-time, progress to pay point 2 on completion of 12 months’ industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
B.2 Social and community services employee level 2
B.2.1 Characteristics of the level

A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.

(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
[B.2.1(e) varied by PR995399 ppc 26Mar10]
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2 Responsibilities
A position at this level may include some of the following:

undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;

(b) achieve outcomes which are clearly defined;
(c) respond to enquiries;
(d) assist senior employees with special projects;
(e) prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f) perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g) provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h) perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i) assist in calculating and maintaining wage and salary records;
(j) assist with administrative functions;
[B.2.2(k) inserted by PR995399 ppc 26Mar10]
(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
[B.2.2(l) inserted by PR995399 ppc 26Mar10]
(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;
[B.2.2(m) inserted by PR995399 ppc 26Mar10]
(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;
[B.2.2(n) inserted by PR995399 ppc 26Mar10]
(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause 0.
B.2.3 Requirements of the position
Some or all of the following are needed to perform work at this level:

Skills, knowledge, experience, qualification and/or training

(i) basic skills in oral and written communication with clients and other members of the public;
(ii) knowledge of established work practices and procedures relevant to the workplace;
(iii) knowledge of policies relating to the workplace;
(iv) application of techniques relevant to the workplace;
(v) developing knowledge of statutory requirements relevant to the workplace;
(vi) understanding of basic computing concepts.
(b) Prerequisites
(i) an appropriate certificate relevant to the work required to be performed;
(ii) will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii) appropriate on-the-job training and relevant experience; or
(iv) entry point for a diploma without experience.
(c) Organisational relationships
[B.2.3(c)(i) varied by PR995399 ppc 26Mar10]
(i) work under regular supervision except where this level of supervision is not required by the nature of responsibilities under 0 being undertaken;
(ii) provide limited guidance to a limited number of lower classified employees.
(d) Extent of authority
(i) work outcomes are monitored;
(ii) have freedom to act within established guidelines;
(iii) solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.
B.3 Social and community services employee level 3
B.3.1 Characteristics of this level

A person employed as a Social and community services employee level 3 will work under general direction in the application of procedures, methods and guidelines which are well established.

(b) General features of this level involve solving problems of limited difficulty using knowledge, judgment and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from senior employees. Employees may receive instruction on the broader aspects of the work. In addition, employees may provide assistance to lower classified employees.
(c) Positions at this level allow employees the scope for exercising initiative in the application of established work procedures and may require the employee to establish goals/objectives and outcomes for their own particular work program or project.
[B.3.1(d) varied by PR995399 ppc 26Mar10]
(d) At this level, employees may be required to supervise lower classified staff or volunteers in their day-to-day work. Employees with supervisory responsibilities may undertake some complex operational work and may undertake planning and co-ordination of activities within a clearly defined area of the organisation including managing the day-to-day operations of a group of residential facility for persons with a disability.
(e) Employees will be responsible for managing and planning their own work and that of subordinate staff or volunteers and may be required to deal with formal disciplinary issues within the work area.
(f) Those with supervisory responsibilities should have a basic knowledge of the principles of human resource management and be able to assist subordinate staff or volunteers with on-the-job training. They may be required to supervise more than one component of the work program of the organisation.
[B.3.1(g) varied by PR526106 ppc 01Feb12]
(g) Graduates with a three year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 3. Graduates with a four year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 4.
B.3.2 Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following:

undertake responsibility for various activities in a specialised area;

(b) exercise responsibility for a function within the organisation;
(c) allow the scope for exercising initiative in the application of established work procedures;
(d) assist in a range of functions and/or contribute to interpretation of matters for which there are no clearly established practices and procedures although such activity would not be the sole responsibility of such an employee within the workplace;
(e) provide secretarial and/or administrative support requiring a high degree of judgment, initiative, confidentiality and sensitivity in the performance of work;
(f) assist with or provide a range of records management services, however the responsibility for the records management service would not rest with the employee;
(g) proficient in the operation of the computer to enable modification and/or correction of computer software systems or packages and/or identification problems. This level could include systems administrators in small to medium sized organisations whose responsibility includes the security/integrity of the system;
(h) apply computing programming knowledge and skills in systems development, maintenance and implementation under direction of a senior employee;
(i) supervise a limited number of lower classified employees or volunteers;
(j) allow the scope for exercising initiative in the application of established work procedures;
(k) deliver single stream training programs;
(l) co-ordinate elementary service programs;
(m) provide assistance to senior employees;
(n) where prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following:
(i) undertake some minor phase of a broad or more complex assignment;
(ii) perform duties of a specialised nature;
(iii) provide a range of information services;
(iv) plan and co-ordinate elementary community-based projects or programs;
(v) perform moderately complex functions including social planning, demographic analysis, survey design and analysis.
[B.3.2(o) inserted by PR995399 ppc 26Mar10]
(o) in the delivery of disability services as described in subclauses 0 or 0, taking overall responsibility for the personal care of residents; training, co-ordinating and supervising other employees and scheduling work programmes; and assisting in liaison and co-ordination with other services and programmes.
B.3.3 Requirements of the job
Some or all of the following are needed to perform work at this level:

Skills, knowledge, experience, qualifications and/or training

(i) thorough knowledge of work activities performed within the workplace;
(ii) sound knowledge of procedural/operational methods of the workplace;
(iii) may utilise limited professional or specialised knowledge;
(iv) working knowledge of statutory requirements relevant to the workplace;
(v) ability to apply computing concepts.
(b) Prerequisites
[B.3.3(b)(i) varied by PR526106 ppc 01Feb12]
(i) entry level for graduates with a relevant three year degree that undertake work related to the responsibilities under this level—pay point 3;
[B.3.3(b)(ii) varied by PR526106 ppc 01Feb12]
(ii) entry level for graduates with a relevant four year degree that undertake work related to the responsibilities under this level—pay point 4;
(iii) associate diploma with relevant experience; or
(iv) relevant certificate with relevant experience, or experience attained through previous appointments, services and/or study of an equivalent level of expertise and/or experience to undertake the range of activities required.
(c) Organisational relationships
(i) graduates work under direct supervision;
[B.3.3(c)(ii) substituted by PR995399, varied by PR995626 ppc 26Mar10]
(ii) works under general supervision except where this level of supervision is not required by the nature of the responsibilities under 0 being undertaken;

(iii) operate as member of a team;
(iv) supervision of other employees.
(d) Extent of authority
(i) graduates receive instructions on the broader aspects of the work;
(ii) freedom to act within defined established practices;
(iii) problems can usually be solved by reference to procedures, documented methods and instructions. Assistance is available when problems occur.

Annexure C – Wage Comparison Table

1 Clause 4.1 of the Enterprise Agreement

2 Written submissions filed by the HSU on 27 March 2017

3 Employer’s written submissions filed on 12 April 2017

4 s.202(4) of the Act

5 s.87 of the Act

6 CFMEU v AWU & TCQ Labour Pty Ltd [2017] FWCFB 2296 at [29]-[31]

7 s.186(2)(d) of the Act

8 s.193(6) of the Act

9 [2010] FWAFB 9985 at [41]

10 SDA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [12]

11 Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales [2011] FWAFB 5163 at [47]

12 TWU v Jarman Ace Pty Ltd [2014] FWCFB 7097 at [28]

13 SDA v Aldi Foods Pty Ltd [2016] FCAFC 161 at [33] per Jessup J, who was in the minority but no issue was taken by the majority with this part of Jessup J’s reasons.

14 At item 818 in the illustrative example

15 s.193(7) of the Act. See, too, Lobethal Abattoirs Pty Ltd [2017] FWC 151 at [74]-[77] as an example of a case where evidence was required in relation to particular classifications

16 See paragraph [49] above.

17 AMIEU v Teys Australia Breenleigh Pty Ltd [2014] FWCFB 5643 at [86]

18 Subject, of course, to applicable time limits.

19 HSU v Liviende Inc [2013] FWC 6830, as varied by [2013] FWC 7360; HSU v Liviende Inc [2014] FWC 4016; and Liviende Incorporated v Health Services Union [2014] FWCFB 8089

20 HSU v Liviende Inc [2013] FWC 6830, as varied by [2013] FWC 7360

21 HSU v Liviende Inc [2014] FWC 4016

22 HSU v Liviende Inc [2013] FWC 6830 at [23] and following

23 See, for example, Lobethal Abattoirs Pty Ltd [2017] FWC 151 at [74]-[77]

24 PR587178

25 See paragraph [68] above

26 See paragraphs [26] to [29] above

27 Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2016] FWCA 8862 at [68]

28 SDA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [12]

29 See, for example, Butt v Long (1953) 88 CLR 476 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61

30 See Undertakings 9 and 10

31 ALDI Foods Pty Ltd v TWU [2012] FWCFB 9298 at [54]

32 Section 56 of the FW Act

33 Including the final submissions by the HSU filed on 12 May 2017 (and adopted by the ASU) in relation to the Undertakings.

Printed by authority of the Commonwealth Government Printer

The Northcott Society

[2017] FWCA 2164

24 MAY 2017

DECISION