The Wyatt Benevolent Institution Inc T/A The Wyatt Trust (Trademark)

[2019] FWCA 8060

[2019] FWCA 8060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Wyatt Benevolent Institution Inc T/A The Wyatt Trust (Trademark)
(AG2019/4306)

WYATT BENEVOLENT INSTITUTION INC - STAFF ENTERPRISE AGREEMENT

Clerical industry
COMMISSIONER PLATT	ADELAIDE, 26 NOVEMBER 2019

Application for approval of the Wyatt Benevolent Institution Inc - Staff Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Wyatt Benevolent Institution Inc - Staff Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Wyatt Benevolent Institution Inc T/A The Wyatt Trust (Trademark). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 19 November 2019.

[3] On 22 November 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 26 November 2019. The undertaking deals with the following topics:

•  The sentence in clause 7 which states “Subsequent to the expiry of its nominal life, this Enterprise Agreement can be terminated by The Wyatt Trust giving 14 days’ notice of its intention to terminate it” is deleted.

•  The sentence in clause 25 which states “If an employee owes any sum of money to The Wyatt Trust when the employment of the employee comes to an end. The Wyatt Trust is entitled to deduct any such sum from any monies payable to the employee on termination” is deleted.

•  Paragraphs 2, 4, 5, 6 and 7 of clause 28 (overtime) will not apply.

•  An employee and the Applicant may agree in writing to the employee taking time off instead of being paid for overtime that has been worked by the employee. Time off must be taken within the period of 6 months after the overtime has been worked. If time off for overtime worked has not been taken within the 6 month period, the Applicant must pay the employee for the overtime at the applicable overtime rate. If on termination of an employee’s employment, time off for overtime worked has not been taken, the Applicant will pay the employee for the overtime at the applicable overtime rate.

•  The redundancy table in clause 43(f) has been realigned and provided.

•  The Applicant has inserted a National Employment Standards (NES) precedence clause which has addressed the following concerns:

•  Clause 31(a) expresses the entitlement to annual leave in days rather than weeks.

•  Clause 31(a) states annual leave accrues for every four weeks of completed service rather than annual leave accruing progressively.

•  Clause 31(a) allows the Applicant to direct the employee to take annual leave if there is no agreement as to when the employee ought to take annual leave rather than requiring the taking of annual leave to be reasonable.

•  Clause 31(c) states the payment of annual leave on termination is based on completed four weeks of service rather than the employee being paid the full amount they would have received had they taken their accrued leave upon termination of employment.

•  Clause 32(a) states that personal leave accrues every four weeks of completed service rather than personal leave accruing progressively according to an employee’s ordinary hours of work.

•  Clause 32(b) states that employees must notify of absence on personal leave within 24 hours of commencement of that shift rather than allowing an employee to give notice of absence on personal leave as soon as practicable, which may be a time after the leave has started.

•  Clause 32(b) states that if an employee is absent from work without reasonable excuse with approval in advance, on the working day before or after a public holiday, that employee may not be entitled to pay for that public holiday rather than if an employee is absent on a public holiday, the employer must pay the employee for their ordinary hours on that day.

•  Clause 32(c) states that personal leave may be used as carer’s leave to care for or support members of the employee’s immediate family, or a member of the employee’s household for whom the employee has responsibility whereas the Act does not require that an employee has responsibility for a member of their household.

•  Clause 32(c) states that carer’s leave is subject to a yearly maximum of ten days per year regardless of accrued personal leave whereas the Act in relation to the taking of paid personal leave does not impose this limit.

[5] No bargaining representatives were appointed.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 25 November 2022.

COMMISSIONER

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