The Uniting Church in Australia Property Trust (Q.)
[2023] FWCA 2493
•11 AUGUST 2023
| [2023] FWCA 2493 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The Uniting Church in Australia Property Trust (Q.)
(AG2023/2376)
BLUECARE CARE AND SUPPORT EMPLOYEES ENTERPRISE AGREEMENT 2023
| Aged care industry | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 11 AUGUST 2023 |
Application for approval of the BlueCare Care and Support Employees Enterprise Agreement 2023.
An application has been made for approval of an enterprise agreement known as the BlueCare Care and Support Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer The Uniting Church in Australia Property Trust (Q.). The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 23 May 2023 and the Agreement was made on 30 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]
By a Form F18A filed by the Australian Nursing and Midwifery Federation (ANMF), through its branch the Queensland Nurses and Midwives’ Union (QNMU), a number of objections were made in opposition to the approval of the Agreement. The objections primarily concerned the ‘Personal Carer Team Leader’ classification under the Agreement. In summary, the F18A stated that the correct comparator for that classification for the purpose of the BOOT was the Level B.2.7 classification under the Aged Care Award 2010, not the Level B.2.5 classification under the Award that the employer contends is applicable. On this basis, the F18A asserted that the Agreement could not pass the BOOT. While there are only about 16 persons in this classification out of a total workforce of over 5,300, the BOOT must be satisfied for “each” relevant employee: s.193(1).
Having regard to the ANMF’s F18A, I invited submissions from the parties regarding those objections, including the proper Award comparator for the purpose of the BOOT for the Personal Carer Team Leader classification under the Agreement. Further submissions were received from the employer and ANMF.
The Award level B.2.5 classification states:
“An employee at this level:
· is capable of functioning semi-autonomously, and prioritising their own work within established policies, guidelines and procedures;
· is responsible for work performed with a substantial level of accountability;
· works either individually or in a team;
· may assist with supervision of others;
· may require basic computer knowledge or be required to use a computer on a regular basis;
· possesses administrative skills and problem solving abilities;
· possesses well developed communication, interpersonal and/or arithmetic skills; and
· requires substantial on-the-job training, may require formal qualifications at trade or certificate level and/or relevant skills training or experience.”
For the personal care stream, the indicative tasks to be performed at that level were “Personal care worker grade 4”.
Under the Agreement, the Level 5 classification description states as follows (with some additional indicative responsibilities for leisure and hospitality positions being omitted):
“An Employee at this level:
· is capable of functioning semi-autonomously, and prioritising their own work within established policies, guidelines and procedures;
· is responsible for work performed with a substantial level of accountability;
· works either individually or in a team;
· may assist with supervision of others;
· may require basic computer knowledge or be required to use a computer on a regular basis;
· possesses administrative skills and problem solving abilities;
· possesses well developed communication, interpersonal and/or arithmetic skills; and
· requires substantial on-the-job training, may require formal qualifications at trade or certificate level and/or relevant skills training or experience.
Employees are accountable for the quality, effectiveness, and timeliness of the, work under their control.
An Employee in this level will have knowledge to manage problems which may be of a complex or technical nature with solutions not related to previously encountered situations and some creativity and originality is required.
Employees in this level require a thorough understanding of the relevant technology, procedures and processes used within their work.
Indicative responsibilities:
All Employees, regardless of job title, may be directed to perform the following indicative responsibilities in addition to those in lower classifications:
· Understand and apply quality control techniques to the point of being accountable and responsible for output and/or work area;
· Day to day supervision of care, support, maintenance and/or hospitality services
· Plan training and assist in the provision of training and support;
· Assist in the development of budgets;
· Exercise high levels of communication and analytical skills;
· Plan, develop, supervise, document and evaluate programs, including but not limited to facilities and maintenance, lifestyle activity, hospitality and care.
· Preparation of operational reports.”
For carer positions under the Agreement, the Agreement indicates that positions at Level 5 may include a ‘Personal Carer Team Leader’. Other positions listed (and not relevant to the objection) were ‘Maintenance Team Leader’, ‘Chief Cook with trade qualification’ and ‘Chef’.
The Level B.2.7 Award classification is as follows:
“An employee at this level:
· is capable of functioning autonomously, and prioritising their work and the work of others within established policies, guidelines and procedures;
· is responsible for work performed with a substantial level of accountability and responsibility;
· may supervise the work of others, including work allocation, rostering and guidance;
· works either individually or in a team;
· may require comprehensive computer knowledge or be required to use a computer on a regular basis;
· possesses developed administrative skills and problem solving abilities;
· possesses well developed communication, interpersonal and/or arithmetic skills; and
· may require formal qualifications at trade or Advanced Certificate or Associate Diploma level and/or relevant skills training or experience.”
The only relevant “indicative tasks” listed for Level B.2.7 was “Personal care worker grade 5”.
As can be observed from the above, the Level B.2.5 Award classification – which was the employer’s comparator for the Level 5 classification in the Agreement – contained skills and qualities that were, with one exception that is not relevant, reflected in the Level 5 classification under the Agreement.
It was the additional descriptions provided in the Agreement for Level 5 classifications in the Agreement that was the focus of the ANMF’s objection. The ANMF’s position was that those additional responsibilities and descriptions indicate that the correct comparator for the BOOT was the Level B.2.7 Award classification. It said this was particularly the case in relation to the requirement that the Personal Carer Team Leader providing day to day supervision of care, planning training and assisting in the provision of training, assisting in the development of budgets, exercising high levels of communication and analytical skills, planning, developing, supervising, documenting and evaluating programs including care, preparing operational reports and possessing a qualification beyond that normally acquired through the completion of a TAFE certificate (e.g. degree or diploma level) is aligned with Level 7 Aged Care employee under the Award rather than with Level 5 Aged Care employee under the Award.
The employer provided further information about Personal Care Team Leaders. They stated that those employees do not supervise Personal Carers, with that role being performed by a Residential Services Manager and, for on shift, a Care Co-Ordinator or Clinical Manager. The employer stated that Personal Care Team Leaders:
· Are expected to have the same level qualification as a Personal Carer who is Level 4 under the Aged Care Award (that is a Cert III);
· Provide on shift guidance and support to Personal Carers in the delivery of care to residents and report concerns to personal carer’s immediate supervisor (the Care Co-ordinator/Clinical Manager);
· Provide assistance and act as a resource for Personal Carers as required on shift;
· Are required to have a basic level of computer knowledge but do not use a computer on a regular basis in carrying out their duties.
The employer acknowledged that while the B.2.7 Award classification appears to include “Personal Care Worker Grade 5”, the employer submits that it does not employ Personal Carers at this level within its structure. However, the employer stated that there were a number of descriptors in the B.2.7 Award classification that did not apply to Personal Care Team Leaders under the Agreement. Specifically, it said Personal Care Team Leaders working for the employer:
· do not allocate work or roster team members;
· are not required to have comprehensive computer knowledge or required to use a computer on a regular basis;
· do not need to have developed administrative skills;
· do not require well developed arithmetic skills;
· do not require formal qualifications at trade or advanced certificate or associate diploma level.
In respect of the above matters, I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that Personal Care Team Leaders performing the tasks or requirements listed in the above paragraph are not a pattern or work nor type of employment that is reasonably foreseeable as that is relevant for the better off overall test.
In relation to some of the additional descriptors for Level 5 employees under the Agreement (when compared to level B.2.5 under the Award), the employer stated that a number of those matters did not apply to Level 5 employees in personal care roles under the Agreement. To that end, it proffered undertakings to the effect that the following indicative responsibilities as set out within the Aged Care Facilities Level 5 classification descriptions in Appendix 1 of the Agreement do not apply to the role of Personal Carer Team Leader:
· Understand and apply quality control techniques to the point of being accountable and responsible for output and/or work area;
· Plan training and assist in the provision of training and support (except that Personal Carer Team Leaders may provide some on the job training to other team members);
· Assist in the development of budgets;
· Plan, develop, supervise, document and evaluate programs, including but not limited to facilities and maintenance, lifestyle activity, hospitality and care;
· Preparation of operational reports.
In further submissions received from the ANMF, it maintained the appropriate BOOT comparator remained Level B.2.7 of the Award, notwithstanding the employer’s submissions and proposed undertakings. I have considered those submissions.
Having regard to the employer’s submissions and undertakings, I am satisfied that Level B.2.5 of the Award remains the appropriate classification to assess the Level 5 Personal Care Team Leaders against for the purpose of the BOOT. I am also satisfied that the Agreement passes the BOOT, although I did not understand there was any submission to the contrary upon the assumption that Level B.2.5 was the appropriate classification matching level. I also note that the ANMF’s Form 18A raised some other matters beyond the issue of Personal Care Team Leaders, which I have not set out above but have considered.
A copy of the undertakings is attached in Annexure A. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
The ANMF, the Australian Municipal, Administrative, Clerical and Services Union (ASU), Australian Workers’ Union (AWU), Health Services Union (HSU), and United Workers’ Union (UWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.
The Agreement was approved on 11 August 2023 and, in accordance with s.54 of the Act, will operate from 18 August 2023. The nominal expiry date of the Agreement is 10 August 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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