The Trustee for Lifehouse Australia Trust
[2024] FWCA 3991
•15 NOVEMBER 2024
| [2024] FWCA 3991 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
The Trustee for Lifehouse Australia Trust
(AG2024/3923)
LIFEHOUSE HEALTH PROFESSIONALS AND SUPPORT SERVICES AGREEMENT 2024
| Health and welfare services industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 15 NOVEMBER 2024 |
Application for approval of the Lifehouse Health Professionals and Support Services Agreement 2024
Introduction
The Trustee for Lifehouse Australia Trust (the Employer) has made an application for approval of an enterprise agreement known as the Lifehouse Health Professionals and Support Services Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Health Professionals and Support Services Award 2020 (the Award). The Health Services Union (HSU) was a bargaining representative for the Agreement.
Apprentices
Clause 23.2 of the Agreement refers to apprentices, however, the Agreement does not provide pay rates for apprentices or refer to them anywhere else in the Agreement. The Employer submitted that the Agreement does not cover apprentices, and that the inclusion was an error.
Carer’s Leave
Clause 37.7 of the Agreement provides that an employee’s entitlement to carer’s leave is subject to the employee ‘being responsible’ for the care and support of the person concerned. This appears to be more onerous than what is required by s.97 of the Act.
Direction to Take Annual Leave
Clause 35.5 of the Agreement states that the Employer may direct the employee to take annual leave when they have accrued in excess of 150% of their annual accrual (4 weeks). This appears to be an excessive leave provision which is permissible under s. 93 of the Act and provided in clause 27.7 of the Award. However, the Award prescribes this provision when 8 or more weeks of annual leave have been accrued. Under the Agreement, this provision is applicable when the employee has accrued 6 or more weeks of annual leave. The Agreement term appears to be more restrictive than the NES.
The Employer submitted that clause 35.5 of the Agreement while different from the Award in providing for a lower leave accrual threshold, is not more restrictive than the NES. The Employer contended that the provision is reasonable, as it allows employees with over 6 weeks of leave to be directed to take leave, provided they receive 8 weeks' notice, keep a 6-week minimum balance, and have the opportunity to submit a leave reduction plan. Additionally, employees saving leave for an extended vacation within 12 months can bank up to 10 weeks.
Definition of a Shiftworker
The Agreement appears to provide a definition of a shiftworker at clause 35.2 of the Agreement and refers to employees that work on 35 or more ordinary hour shifts occurring on Sundays and/or Public Holidays during a qualifying period of employment for annual leave purposes. The Award at clause 27.2 merely defines that employees be regularly rostered to work Sundays and Public Holidays and does not define the amount of those days per year. The Employer submitted that the words ‘regularly rostered to work Sundays and public holidays’ have been examined in a number of cases of the Fair Work Commission and been held to mean 34 Sundays and 6 public holidays. The Employer further submitted that the reference to 35 or more ordinary shifts on a Sunday and/or public holiday is more generous than the Award definition (being 34 Sundays and 6 public holidays, together totalling 40).
Health Managers
The Agreement appears to lack specific conditions for Health Managers. Notably, it does not specify hours of work, span of hours, shift work penalties, overtime entitlements, allowances, or additional annual leave for Health Managers at Level 5 and above. However, hours of work (Clause 23) and overtime provisions (Clause 29) apply to Health Managers classified at Level 4 and below.
The Employer submitted that the Level 5 Health Manager salary is set significantly above the Award rate and is therefore sufficient to cover more than 416 hours of annual overtime. In practice, however, the Employer states that the Health Manager role involves minimal overtime, typically around 3 to 4 hours in certain weeks. Given this substantial pay difference, the Employer submitted that the Commission should be satisfied that employees are better off overall under the Agreement than under the Award.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
Schedule 5 of the Agreement provides pay rates for Computer Technicians. Pay rates fall below the Award between 3.35%-14.44% for Computer Operators Grades 1 and 2 (first year). Furthermore, pay rates fall below the Award between 1.09%-3.87% for Trainee Programmers 1st and 2nd years. These comparisons were completed against Support Services Level 8 and Support Services Level 6 at clause C.1.1 of the Award respectively, pursuant to the Employer’s classification matching.
Clause 9.3(b) of the Agreement provides that the minimum payment for a casual employees is 2 hours whereas Clause 11.2 of the Award provides the minimum engagement for a casual employee is 3 hours. This reduction may result in some casual employees not being better off under the Agreement as some rates of pay are not high enough to compensate, particularly relating to Computer Technicians and Trainee Programmers.
Clause 27 of the Agreement provides an afternoon shift penalty of 110% which rises to 112.5% when shifts begin at or after 1pm, whereas clause 26.3 of the Award provides a penalty of 115% for all hours. This appears to present a BOOT issue for Computer Technicians and Trainee Programmers who are either below or close to the Award.
Section 190 Undertakings
The Employer provided written undertakings to address a number of the BOOT and other issues. A copy of the undertakings is attached in Schedule 9. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
I have considered the Employer’s submissions, and that the HSU supports approval of the Agreement. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The HSU 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 HSU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2024. The nominal expiry date of the Agreement is 31 August 2026.
DEPUTY PRESIDENT
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