DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The State of Victoria T/A The Department of Health and Human Services
(AG2018/2395)

DISABILITY SERVICES ENTERPRISE AGREEMENT VICTORIA 2018-2022

State and Territory government administration
DEPUTY PRESIDENT KOVACIC	CANBERRA, 29 OCTOBER 2018

Application for approval of the Disability Services Enterprise Agreement Victoria 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Disability Services Enterprise Agreement Victoria 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The State of Victoria T/A The Department of Health and Human Services (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. I note that the model consultation term does not displace the consultation clause in the Agreement but rather will operate in tandem with the clause in the Agreement.

[5] The Agreement lodged contained numerous referencing errors throughout the Agreement. The Applicant has requested that the Commission exercise its discretion to correct these errors pursuant to s.586 of the Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act. On the 23 October 2018 the Applicant filed the attached amended version of the Agreement correcting the various errors identified. A list of the corrections made is also attached to this Decision.

[6] The Health and Community Services Union (HACSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November 2018. The nominal expiry date of the Agreement is 30 June 2022.

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

Clause Number	Original Clause	Corrected Clause
9.1(d)	“Employee” means a person employed by the Employer and eligible to be a member of the Health Services Union	“Employee” means a person employed by the Employer and eligible to be a member of HACSU
11.1	The Government has determined to transfer its public disability services, specifically Supported Independent Living (SIL) and Short-Term Accommodation and Assistance (STAA) (that is, disability accommodation and respite services (excluding disability justice/forensic services, and the SIL services for the residents of the former Sandhurst Centre) to the non-government disability sector	The Government has determined to transfer its public disability services, specifically Supported Independent Living (SIL) and Short-Term Accommodation and Assistance (STAA), that is, disability accommodation and respite services (excluding disability justice/forensic services, and the SIL services for the residents of the former Sandhurst Centre) to the non-government disability sector.
11.9(e)	Clients service plan development and administration	Client service plan development and administration
11.15	This period involves the transfer of all section 205 Employees to direct employment by the relevant provider(s). The transfer will take place after the provider makes an offer of employment to the Employee and the Employee accepts that offer of employment.	This period involves the transfer of all section 205 Employees to direct employment by the relevant provider(s). The transfer will take place after the provider makes an offer of employment to the Employee and the Employee accepts that offer of employment. Employees will receive an appointment letter to reflect these arrangements and a summary of the matters to be covered by that appointment letter is included in Schedule H.
11.21	Transferred Employees will have their classification structures and modes of employment maintained following transfer. Future change will only be in accordance with the provision of this Agreement and the replacement Agreement.	Transferred Employees will have their classification structures and modes of employment maintained following transfer. Future change will only be in accordance with the provision of this Agreement and the replacement Agreement(s).
12.4	For a change referred to in clauses 12.1 and 12.1(b)	For a change referred to in clauses 12.1(a) and 12.1(b)
14.1	HACSU delegates hold a vital position(s)	HACSU Delegates hold a vital position
15.6(g)	The provisions of clause 32 Recreation Leave, and clause 34 Paid Personal Leave shall not apply in the case of a casual Employee.	The provisions of clause 32 Recreation Leave, and clause 34 Personal/Carer’s Leave shall not apply in the case of a casual Employee.
15.9(a)	Subject to agreement between the Employer and Employee, an Employee may change their mode of employment from full or part time employment to casual employment without the necessity of resignation and reappointment. Notwithstanding this clause the transfer to insecure modes of employment is not encouraged and approval will usually be considered only in exceptional personal circumstances, including those identified in clause 16.22.	Subject to agreement between the Employer and Employee, an Employee may change their mode of employment from full or part time employment to casual employment without the necessity of resignation and reappointment. Notwithstanding this clause the transfer to insecure modes of employment is not encouraged and approval will usually be considered only in exceptional personal circumstances.
23.4(h)(iv)	Notwithstanding anything in this clause, an Employee who is on higher duties assignment immediately prior to the time he or she commences paid parental leave or adoption leave in accordance with clause Error! Reference source not found. shall be paid an allowance in accordance with this clause during the period of paid leave, provided that:	Notwithstanding anything in this clause, an Employee who is on higher duties assignment immediately prior to the time he or she commences paid parental leave or adoption leave in accordance with clause 33 shall be paid an allowance in accordance with this clause during the period of paid leave, provided that:
23.4(h)(iv)(B)	the payment of the higher duties allowance during paid maternity or paid adoption leave ceases at the time the assignment would have ceased if the Employee had remained on duty.	the payment of the higher duties allowance during paid parental or paid adoption leave ceases at the time the assignment would have ceased if the Employee had remained on duty.
23.6(f)	The Employee may make (pre tax) salary sacrifice contributions under clause Error! Reference source not found. or additional personal (post tax) contributions to their elected fund on providing written authorisation to the Employer.	The Employee may make (pre-tax) salary sacrifice contributions under clause Error! Reference source not found. or additional personal (post-tax) contributions to their elected fund on providing written authorisation to the Employer.
28.2(x)	27.2.1.10 a maximum shift length for all Employees of 12 hours, not including sleepovers and meal breaks;	a maximum shift length for all Employees of 12 hours, not including sleepovers and meal breaks;
28.2(xi)	27.2.1.11 the use of full-time Employees where possible;	the use of full-time Employees where possible;
28.2(xii)	27.2.1.12 the potential to employ a permanent relief work force;	the potential to employ a permanent relief work force;
28.2(xiii)	27.2.1.13 maintenance of one house supervisor over each group home.	maintenance of one house supervisor over each group home.
28.5(b)	Any proposal to change the current distribution of group homes to operations managers shall be subject to the consultation provision of this Agreement and then any dispute shall be resolved in accordance with the Disputes Settlement Procedure and consistent with Clause 27.5.1, Clause 6 Objectives and Clause 11 Transfer of Services.	Any proposal to change the current distribution of group homes to operations managers shall be subject to the consultation provision of this Agreement and then any dispute shall be resolved in accordance with the Disputes Settlement Procedure and consistent with Clause 27.5(a), Clause 6 Objectives and Clause 11 Transfer of Services.
29.3(e)
29.4(b)	See Table in DSEAV	See Table in DSEAV
29.5(a)	See Table in DSEAV	See Table in DSEAV
30.1(ix)	See DSEAV	See DSEAV
31.6(b)	Notwithstanding clause 31.6.3 and clause 31.6 (f) the accrual and taking of time off in lieu of overtime shall be at the following rates:	Notwithstanding clause 31.6 (c) and clause 31.6 (f) the accrual and taking of time off in lieu of overtime shall be at the following rates:
32.6(a)	An Employee shall, in respect of recreation leave, be entitled to be paid in addition to an amount payable by way of salary and other emoluments included in clause 31.6.3, the greater of the two amounts calculated in accordance with the following	An Employee shall, in respect of recreation leave, be entitled to be paid in addition to an amount payable by way of salary and other emoluments included in clause 32.6 (c), the greater of the two amounts calculated in accordance with the following
33.12(a)(ii)	where the pregnancy terminates after the completion of 20 weeks, during the certified period/s the Employee is entitled to paid special maternity leave not exceeding the amount of paid parental leave available under clause 33.3 and thereafter, to unpaid special maternity leave.	where the pregnancy terminates after the completion of 20 weeks, during the certified period/s the Employee is entitled to paid special maternity leave not exceeding the amount of paid parental leave available under clause 33.3 and thereafter, to unpaid special parental leave.
34	The provisions of this clause apply to full time and regular part time Employees. See clause 33.9(d) for casual Employees’ entitlements.	The provisions of this clause apply to full time and regular part time Employees. See clause 34.9(d) for casual Employees’ entitlements.
37.10(d)(ii)	during any absence from duty on parental/maternity, paternity/partner or adoption leave without pay; or	during any absence from duty on parental or adoption leave without pay; or
38.7	An Employee whose rostered day off falls on a holiday observed in accordance with this Agreement shall be granted one day's leave in lieu of such holiday.	Numbering change – see DSEAV
43.2(c)(v)	The Employer will provides executive support to committees.	The Employer will provide executive support to committees.
Schedule A	Trainee Program The trainee program will apply to DDSO1’s. Entry positions at this level will work within established routines, practices and procedures and under routine direction or supervision. Routine supervision means Employees receive instruction on job requirements, procedures and methods to be used in new or unusual tasks and situations. Work is subject to progress checking. Over time, as the Trainee's competencies increase to allow the application of knowledge with depth in some areas and a broad range of skills generally, trainees should eventually gain the ability to undertake an increased range of tasks in a variety of contexts with some complexity in the extent and choice of action required. Relevant to the role trainees will use an increased use of judgement and discretion in achieving work outcomes. The trainee program will be determined through the Central Training Consultative and Implementation Committee (CTCIC) and be monitored through individual Employee training plans.	Trainee Program The trainee program will apply to DDSO1’s. Entry positions at this level will work within established routines, practices and procedures and under routine direction or supervision. Routine supervision means Employees receive instruction on job requirements, procedures and methods to be used in new or unusual tasks and situations. Work is subject to progress checking. Over time, as the Trainee's competencies increase to allow the application of knowledge with depth in some areas and a broad range of skills generally, trainees should eventually gain the ability to undertake an increased range of tasks in a variety of contexts with some complexity in the extent and choice of action required. Relevant to the role trainees will use an increased use of judgement and discretion in achieving work outcomes. The trainee program will be determined through the Central Consultative Committee (CCC) and be monitored through individual Employee training plans.
Schedule A (2.11.2.3)	Classifications The classification levels of positions engaged in the provision of non-residential services includes positions at Level 4, Level 3, Level 2 and Level 1 (DDSO 4, DDSO 3A, DDSO 3, DDSO 2A, DDSO 2, DDSO 1Q and DDSO 1). The classification of positions will depend on the qualifications, duties and responsibilities, the size of the team and the relevant experience of the occupant. At the completion of the current review of case management services, the competencies and classification matrix will be amended, if required, to reflect any changes to the classification structure as determined by the Central Training Consultative Committee (CTCIC).	Classifications The classification levels of positions engaged in the provision of non-residential services includes positions at Level 4, Level 3, Level 2 and Level 1 (DDSO 4, DDSO 3A, DDSO 3, DDSO 2A, DDSO 2, DDSO 1Q and DDSO 1). The classification of positions will depend on the qualifications, duties and responsibilities, the size of the team and the relevant experience of the occupant. At the completion of the current review of case management services, the competencies and classification matrix will be amended, if required, to reflect any changes to the classification structure as determined by the Central Consultative Committee (CCC).
Schedule B, page 145, clause 8(i) and (j)	i) After a reasonable period of time following the completion of the steps in (a)-(i) above, the manager/supervisor will assess whether the Employee has improved to the required standard. If the manager/supervisor decides that the Employee’s performance has improved to the required standard, the manager/supervisor will notify the Employee that the formal performance management process has completed. However, if there are repeated practice and performance issues that arise within 12 months, the Employee may be referred to Part B of this Schedule. j) After a reasonable period of time following the completion of the steps in (a)-(i) above, the manager/supervisor will assess whether the Employee has improved to the required standard. If the manager/supervisor decides that the Employee’s performance has not improved to the required standard, the Employee may be referred to Part B of this Schedule.	i) After a reasonable period of time following the completion of the steps in (a)-(g) above, the manager/supervisor will assess whether the Employee has improved to the required standard. If the manager/supervisor decides that the Employee’s performance has improved to the required standard, the manager/supervisor will notify the Employee that the formal performance management process has completed. However, if there are repeated practice and performance issues that arise within 12 months, the Employee may be referred to Part B of this Schedule. j) After a reasonable period of time following the completion of the steps in (a)-(g) above, the manager/supervisor will assess whether the Employee has improved to the required standard. If the manager/supervisor decides that the Employee’s performance has not improved to the required standard, the Employee may be referred to Part B of this Schedule.
Schedule C, Clause 7	(iii) Give the Employee an opportunity to respond to the outcome of the investigation process (iv) In considering whether to take disciplinary action, the Employer will consider: (A) whether there is a valid reason related to the conduct or performance of the Employee arising from the investigation justifying disciplinary action; (B) whether the Employee knew or ought to have known that the conduct or performance was below acceptable standards; and (C) any explanation by the Employee relating to conduct including any matters raised in mitigation.	(iii) Give the Employee an opportunity to respond to the outcome of the investigation process (iv) In considering whether to take disciplinary action, the Employer will consider: (A) whether there is a valid reason related to the conduct or performance of the Employee arising from the investigation justifying disciplinary action; (B) whether the Employee knew or ought to have known that the conduct or performance was below acceptable standards; and (C) any explanation by the Employee relating to conduct including any matters raised in mitigation.
Schedule C, Clause 12	If at the time this agreement comes into operation there are disciplinary matters that commences prior to 30 June 2018 will continue to be managed under Schedule C until completion.	If at the time this agreement comes into operation there are disciplinary matters that commenced prior to 30 June 2018 those disciplinary matters will continue to be managed under Schedule C until completion.

The State of Victoria T/A The Department of Health and Human Services

[2018] FWCA 6616

29 OCTOBER 2018

DECISION