United Workers' Union v Southern Cross Care (WA) Inc
[2020] FWCFB 5177
•2 OCTOBER 2020
| [2020] FWCFB 5177 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
United Workers' Union
v
Southern Cross Care (WA) Inc
(C2020/4045)
VICE PRESIDENT HATCHER | SYDNEY, 2 OCTOBER 2020 |
Appeal against decision [2020] FWCA 2416 of Commissioner Williams at Perth on 8 May in matter number AG2020/951.
Introduction
[1] The United Workers’ Union (UWU) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Williams published on 8 May 2020 1 in which he approved the Southern Cross Care (WA) Inc. Residential Care Enterprise Agreement 2019 (Residential Care Agreement). The UWU contends in its notice of appeal that, first, it was denied procedural fairness in relation to the application for approval of the Residential Care Agreement and, second, that the Residential Care Agreement should not have been approved because it did not pass the better off overall test (BOOT) approval requirement contained in ss 186(2)(d) and 193 of the Fair Work Act 2009 (FW Act).
[2] In circumstances where the current COVID-19 pandemic prevents the Commission from conducting in-person hearings, the Commission inquired of the parties whether they were prepared to have the appeal determined on the written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the appeal could be adequately determined without the parties making oral submissions for consideration. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the FW Act.
[3] This appeal was originally allocated to a Full Bench consisting of Vice President Hatcher, Deputy President Asbury and Deputy President Kovacic. Sadly, on 31 July 2020, Deputy President Kovacic passed away. On 12 August 2020, the President of the Commission, Ross J, reconstituted the bench to consist of Vice President Hatcher, Deputy President Asbury and Deputy President Masson. The parties were informed of this the same day, and advised that Deputy President Masson would read the submissions and other materials filed by the parties and would join in the decision-making process of the reconstituted Full Bench on that basis. The parties were given an opportunity to object to this course, but no communication of any objection was received, and accordingly the matter has been determined on the basis described.
Background
[4] Clause 3.1 of the Residential Care Agreement provides that the agreement covers Southern Cross Care (WA) Inc. (Southern Cross) and its employees employed in residential aged care in the classifications contained in clause 13 of the agreement, but does not cover employees of Southern Cross working in home care, respite centres or in mental health services. Clause 3.1 provides that the agreement also covers the UWU, the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU). The application for approval of the Residential Care Agreement was lodged by Southern Cross on 2 April 2020. It states (and it is not in dispute) that the UWU, the ANMF and the HSU were bargaining representatives for the Residential Care Agreement. It is not in dispute that Southern Cross served the application on the UWU, the ANMF and the HSU.
[5] The Form F17 statutory declaration which accompanied the declaration stated that the awards which covered employees covered by the Residential Care Agreement were the Aged Care Award 2010 (in respect of aged care classifications) and the Nurses Award 2010 (in respect of enrolled nurse classifications). In connection with the BOOT, the declaration stated that the Agreement contained terms and conditions of employment that were more beneficial than the equivalent provisions in the nominated awards, and identified these to be as follows:
• Wages - rates are above those found in the award
• Long Service leave - 13 weeks provided, in excess of state legislation. Accessible at 7 years instead of 10
• Parental leave included 6 weeks of paid leave, zero provided in the award
• Paid domestic violence leave of two days (remainder is unpaid)
• professional development leave - 5 days per year, not present in the award
• All overtime is double time and not 1.5x
• 6 weeks annual leave given to all direct care employees - to compensate for Public holidays worked but applies regardless of how many worked
• Afternoon shift at a higher penalty in the EBA than in the award
[6] The declaration also identified the following terms and conditions in the Residential Care Agreement as being less beneficial than the equivalent terms and conditions in the Award:
• Uniform allowance is less than award - however all employees are provided with uniforms at no cost
• Leading hand allowance (in charge in EBA) only applies when in charge of 3 or more staff. Employees are not in charge of 6+ people
[7] The declaration also stated that the following award provisions were not present in the Residential Care Agreement:
• Nauseous work allowance is not provided
• Tool allowance is not provided
• Broken shift provisions are not included, however employees do not work broken shifts
[8] On 6 April 2020, the Commission sent Southern Cross, the UWU, the ANMF and the HSU a letter in standard form relating to the application for approval of the Residential Care Agreement. The letter relevantly stated:
“Within 7 business days of when the application was lodged, any person wishing to be heard in this matter, or intending to lodge a statutory declaration (e.g. F18, F18A or F21), must contact the Fair Work Commission.
In the absence of any person indicating they wish to be heard, the application for approval of the agreement may be determined in accordance with the requirements of the Act on the basis of the materials lodged with the Fair Work Commission. In all circumstances, the presiding Member will determine whether a matter is listed for an attendance hearing.
A decision in relation to this matter will not be made until at least 7 business days after the date the application was lodged. The following timeliness benchmarks provide an indication of how long it may take for the Commission to finalise this application:
Applications that are approved without requiring undertakings:
• 50% to be finalised within 3 weeks
• 100% to be finalised within 8 weeks
Applications that require undertakings or cannot be approved; contested applications and applications requiring a hearing:
• 50% to be finalised within 10 weeks
• 100% to be finalised within 16 weeks
The Commission’s timeliness benchmarks are intended to set tight performance goals; to an extent they are aspirational. We expect that there will be circumstances where the Commission cannot meet these goals for a variety of reasons.”
[9] On 9 April 2020, the ANMF filed a Form F18 statutory declaration in which it stated that it supported approval of the Residential Care Agreement and wished to be covered by it. The ANMF’s declaration, however, noted that it disagreed with the Southern Cross’s Form F17 declaration, in that it identified additional entitlements contained in the agreement that were not contained in the relevant awards, and also noted that the agreement was less beneficial than the awards in the following respects:
• Annual Leave & Public Holidays - the quantum of Annual Leave and associated public holiday loadings are less beneficial than the award (Aged Care Award 2010)
• Clause 20.2 of the agreement states that penalties are paid in substitution for and not cumulative upon the casual loading. The Award (Clause 10.4(d) of the Nurses Award 2010) states that a casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.
[10] The ANMF’s declaration also identified time off in lieu of overtime as an award entitlement that had not been included in the Residential Care Agreement.
[11] On 17 April 2020, the Commission’s staff produced an internal analysis of the Residential Care Agreement which, in relation to the BOOT for employees covered by the Aged Care Award, relevantly stated that:
• pay rates range between 3.18% and 34.11% above the award rates:
• public holiday loadings were lower under the agreement than both awards for direct care employees;
• clause 8.4 of the agreement provides that part-time employees could agree to work additional hours in excess of rostered daily ordinary hours at their ordinary rate of pay, while clause 25.1(b) of the award provides that all time in excess of rostered daily ordinary hours will be overtime and will be paid the applicable overtime rate;
• the rate for training undertaken outside normal rostered hours is less under the agreement than under the award; and
• clause 18.4 of the agreement provides a minimum payment for 3 hours for a recall to work, whereas under clause 25.1(d) of the award it is 4 hours.
[12] The application was allocated to the Commissioner for determination the same day.
[13] On 6 May 2020, the HSU filed a Form F18 declaration in which it stated that it supported the approval of the Residential Care Agreement and wished to be covered by it. The UWU failed to file any Form F18 declaration of its own.
[14] On 8 May 2020, the Commissioner issued his decision approving the Residential Care Agreement. The decision stated that the Commissioner was satisfied that the agreement met each of the requirements of ss 186, 187 and 188 of the FW Act as were relevant to the application for approval, and said that the ANMF and the HSU had given notice under s 183 of the FW Act that they wanted the agreement to cover them and, accordingly, noted in accordance with s 201(1) that the agreement covered those organisations.
[15] On 8 May 2020, shortly after the Commissioner published his decision approving the Residential Care Agreement, the UWU sent an email to the Chambers of the Commissioner which stated (omitting formal parts):
“I refer to the attached decision issued by Commissioner Williams this morning.
The United Workers Union (UWU) requests that the Commissioner issues a correction to this decision, in the terms and for the reasons outlined below.
Southern Cross Care (WA) Inc (Employer) lodged the following Agreements with the Fair Work Commission (FWC) in late March/early April 2020:
• AG2020/877 – Application for approval of the Southern Cross Care (WA) Inc. Mental Health Services Enterprise Agreement 2019
• AG2020/944 – Application for approval of the Southern Cross Care (WA) Inc. Home Care and Respite Services Enterprise Agreement 2019
• AG2020/951 – Application for approval of the Southern Cross Care (WA) Inc. Residential Care Enterprise Agreement 2019
The Agreement the subject of matter AG2020/951 was lodged on 2 April 2020. Matter AG2020/877 and AG2020/944 were allocated to the Chambers of Deputy President Saunders.
On 6 April 2020, the FWC provided correspondence advising that any person wishing to be heard in relation to matter AG2020/951, or intending to lodge a statutory declaration, must contact the FWC within 7 days from the date of lodgement.
On 9 April 2020, the UWU advised the Chambers of Deputy Saunders that it was intending to lodge a statutory declaration in relation to matter AG2020/951. Please find this correspondence attached. I note that this correspondence was provided within the 7 day timeframe.
Matter AG2020/877 and AG2020/944 are current ongoing, and the Employer and the unions have made various submissions in relation to BOOT and other issues identified by Deputy President Saunders. The UWU incorrectly assumed that the FWC was dealing with the three Agreements in a staggered manner to allow the Employer time to provide any required undertakings, and that the UWU would have the opportunity to provide a Form F18 in relation to matter AG2020/951 in due course.
The UWU is a bargaining representative for the Agreement pursuant to section 176(1)(b) of the Fair Work Act 2009 (Cth), and it wishes to be covered by the Agreement, as indicated by the correspondence provided to the Chambers of Deputy President Saunders.
The UWU respectfully requests that the FWC:
• allows 24 hours for the UWU to provide a Form F18 in relation to matter AG2020/951; and
• subsequently issues a correction to decision [2020] FWCA 2416 to include the UWU at paragraph [3] of the decision.
I apologise for any inconvenience caused to the FWC and the Employer.”
[16] The Commissioner’s Chambers sent a response to the UWU’s email which stated that “the decision will not be ‘corrected’ as the UWU have requested” and referred the UWU to the Full Bench authority in CPSU v Water Corporation. 2
[17] The background to the matters adverted to in the UWU’s email of 8 May 2020, and the circumstances which the UWU claims gave rise to a denial of procedural fairness, are as follows. On 26 March 2020, Southern Cross lodged an application for approval of the Southern Cross Care (WA) Inc. Mental Health Services Enterprise Agreement 2019 (Mental Health Agreement) and, on 2 April 2020, lodged an application for the approval of the Southern Cross Care (WA) Inc. Home Care and Respite Services Enterprise Agreement 2019 (Home Care Agreement). The UWU was a bargaining representative for both these agreements, and they were bargained for simultaneously with the Residential Care Agreement. Both applications were allocated to Deputy President Saunders for determination. The “standard letter” referred to above was sent to Southern Cross and the bargaining representatives in relation to the Mental Health Agreement on 30 March 2020 and in relation to the Home Care Agreement on 6 April 2020.
[18] On 2 April 2020, the UWU sent an email to the Commission referring to the application for approval of the Mental Health Agreement in which it said that “The UWU gives notice that it intends to lodge a Form F18 in relation to the application”. On 9 April 2020, the UWU sent an email to the Chambers of Deputy President Saunders attaching a Form F18 declaration in relation to the Mental Health Agreement in which it stated that it did not support the approval of the agreement in its current form because of certain identified BOOT issues and gave notice pursuant to s 183 that it wanted the agreement to cover it. The covering email stated, among other things, that the UWU wished to draw to the Deputy President’s attention the “related applications” concerning the Home Care Agreement and the Residential Care Agreement, and that “The UWU intends to file Form F18s in relation to these applications shortly”. On 1 May 2020, the UWU emailed a Form F18 declaration in relation to the Home Care Agreement to the Chambers of the Deputy President, in which it stated that it did not support the approval of the agreement in its current form because of identified BOOT concerns and gave notice that it wished to be covered by the agreement.
[19] The Mental Health Agreement and the Home Care Agreement were eventually approved by the Deputy President on 2 June 2020 with undertakings, at least some of which arose from the BOOT issues raised by the UWU.
Appeal submissions
[20] In relation to its ground of appeal alleging a denial of procedural fairness, the UWU submitted that:
• the UWU advised the Commission, in its email of 9 April 2020, that it intended to file a Form F18 in relation to the Residential Care Agreement;
• the function of the Form F18 is, among other things, to advise the Commission whether a party wishes to be heard in relation to an agreement approval application and notify the Commission pursuant to s 183(1) that the employee organisation wants the agreement to cover it;
• there is no statutory timeframe for the filing of a Form F18, but the standard letter required notification within 7 days of the date of lodgement if a party wished to be heard or lodge a Form F18, and the UWU notified the Commission that it intended to file a Form F18 and thus wished to be heard within that timeframe;
• on 8 May 2020, the Commissioner issued his decision without notifying the UWU that the matter had been allocated to his chambers or providing the opportunity to be heard in relation to the matter;
• from the date that the Residential Care Agreement was lodged for approval on 2 April 2020 to the date of the decision issued on 8 May 2020, all parties were grappling with the impact of the COVID-19 pandemic;
• the UWU notified the Commission that it wished to be heard in its email of 9 April 2020, and was inadvertently denied that opportunity; and
• in the circumstances, the Commissioner’s constructive refusal of the UWU’s request to be heard constituted a denial of procedural fairness.
[21] In relation to its ground of appeal concerning the BOOT, the UWU submitted that:
• the Commissioner failed to properly consider whether the Residential Care Agreement passed the BOOT;
• the wage rates in the Residential Care Agreement are only marginally above those in the relevant awards; for example, for employees covered by the Aged Care Award (other than for cooks and chefs), the wages rates are only between 3.17% and 7.88% higher than the award rates as at the test time;
• there are numerous provisions in the Residential Care Agreement that are less beneficial than the awards which were not identified in Southern Cross’ Form F17 declaration; and
• a consideration of all the benefits and detriments under the Residential Care Agreement does not result in each employee being better off overall than under the relevant award; and
• the decision with respect to the BOOT is attended with sufficient doubt as to warrant its reconsideration.
[22] The clauses in the Residential Care Agreement identified by the UWU as less beneficial than the Aged Care Award or the Nurses Award were set out in tabular form by the UWU as follows:
| Clause | BOOT Concern |
| 6 | The definition of ‘Carer (Multi Skilled) and ‘Chef’ contains reference to specific course of study. The equivalent position in the AC Award requires a qualification or equivalent knowledge and skills. |
| 6 | The Agreement does not provide a definition of a shift worker ‘for the purposes of the NES’ as required by section 196 of the FW Act. The Agreement provides a definition of a ‘Continuous Shift Employee’ which is not in line with the AC Award (see clause 28.2). |
| 8 | The AC Award provides that ‘a part-time employee has reasonably predictable hours of work’ and ‘[b]efore commencing employment, the employer and 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’. The Agreement does not contain equivalent provisions. |
| 8.4 | The Agreement provides that ‘[p]art time employees may agree to work additional hours on top of their rostered shifts at their ordinary rate of pay’. The Agreement defines ‘ordinary rate’ as ‘the hourly base classification rate excluding shift and weekend penalties’. It is therefore not clear whether part-time employees who work additional shifts are paid the appropriate penalty rates and other allowances in relation to those shifts, and whether these additional hours will accrue the appropriate leave entitlements. |
| 9.5 | The Agreement provides that the minimum shift length is three consecutive hours. However, where a staff member is required to attend a staff meeting or training, the employee will be paid: • 1.5 hours for a meeting; • 2 hours for onsite training; and • no minimum for online training. The AC Award provides that full-time employees will receive a minimum payment of four hours for each engagement, and part-time and casual employees will receive a minimum payment of two hours for each engagement. The hours of work on any day will be continuous. |
| 9.7 | The Agreement addresses subclause 25.1(c)(ii) of the AC Award but does not address subclause 25.1(c)(i). |
| 11.2 | The Agreement provides that a roster can be varied giving 48 hours’ notice. The AC Award provides that seven days’ notice will be given of a change in a roster, and that a roster may only be altered after that time to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness or in an emergency. |
| 12.1(2) | The Agreement provides that where an employee is required to be on duty during their meal break, the employee will be paid at ordinary rates. The AC Award provides that ‘[w]here an employee is required to remain available to attend to duty or is on duty during their meal break, the employee will be paid at overtime rates for all time worked from the commencement of that meal break until such time that a meal break free from duty is taken by the employee or the employee’s shift ends…’ |
| 19.4 | The Sunday rate for a casual employee is 200% under the AC Award and 175% under the Agreement. |
| 21.3 | A recalled employee is only paid at a minimum of 30 minutes, rather than three hours, as per the Nurses Award. |
| 22.2 | The uniform allowance under the Agreement is less than the rate provided by the AC Award; the Agreement does not contain a laundry allowance. |
| 23.12 | The Awards contain parameters around the employer’s ability to direct employees to take annual leave. The Agreement does not contain these protections. |
| 25 | Under the Agreement, direct care employees who are shiftworkers are entitled to 6 weeks of annual leave. Under the AC Award, an employee who works public holidays and is a shiftworker is entitled to up to 7 weeks of annual leave OR five weeks of annual leave and a loading of 150% (double time and a half) for every public holiday worked. Under the Nurses Award, an employee who is a shiftworker is entitled to 6 weeks of annual leave AND payment for hours worked on a public holiday at double time, rather than the 50% provided in the Agreement. |
| 35.8 | The Agreement provides that employees must give two weeks’ notice to terminate their contract of employment; the AC Award only requires one. |
| 43 | The casual conversion clause is less beneficial than the Award clauses. |
| The Agreement does not provide ceremonial leave. |
[23] Southern Cross submitted, in relation to the procedural fairness appeal ground, that the UWU was aware that its employees had voted to approve the Residential Care Agreement and was served with the application for approval of the agreement when it was filed. The failure of the UWU to file a Form F18 declaration was the result of its own inaction in circumstances where it had sufficient time to do so and not because of any denial of procedural fairness by the Commission. In regard to the BOOT appeal ground, it was submitted that:
• the ANMF and the HSU supported the approval of the Residential Care Agreement and expressed no BOOT concerns;
• the Commissioner’s decision indicated that he had considered the BOOT and was satisfied that the relevant statutory requirements were met;
• the rates of pay on the Residential Care Agreement were not merely “marginally” above the rates in the comparator awards since, on average, they were 11% above the award;
• for the lowest-earning employee under the Residential Care Agreement, the rates result in the employee being better off by $25.69 per week and $1,336.05 per annum for full-time work;
• the provisions raised by the UWU can be absorbed into these amounts, and most of the concerns raised are non-monetary in nature and would not operate in the way suggested; and
• the UWU neglected to address the other entitlements that are more beneficial than the awards including entitlements to paid parental leave, higher overtime rates, paid domestic violence and other additional paid leave entitlements.
[24] Southern Cross responded specifically to the concerns raised by the UWU in its own table as follows:
| Clause | SCC Response |
| 6 | This does not impact current employees and only outlines restrictions on hiring practices In line with Aged Care Standard 7 and company policy, SSC is required to have a workforce, “that is sufficient, and is skilled and qualified to provide safe, respectful and quality care and services.” |
| 6 | Clause 6 definitions contains “continuous shift employee”, which provides the definition for NES purposes. It only omits overtly stating this is for the purpose of the NES. The definition has a broader scope than the Aged Care Award, as it includes regularly working on any weekend Award requires 4 hours on 10+ weekends |
| 8 | This was discussed and agreed upon by the other two unions party to the Agreement. It was agreed the Award provisions are too inflexible, which was detrimental to both the company and employees in prohibiting the option of ‘flexing up’ part time hours – which is an accepted and established practice within SCC. The wording used in the Agreement was provided by the HSU as a way for employees to opt to pick up additional hours they would not otherwise receive. |
| 8.4 | While SCC understands the point that UWU is making, all parties are well aware this is not the intent. The use of “ordinary rate” is the dictionary definition of ordinary, in that it has no special or distinctive features Any applicable penalties would still be paid |
| 9.5 | This is designed as a benefit to employee for greater flexibility, so they may complete online training at home if they prefer The alternative is it is built into their rosters and employees have asked to do it at home. A 2-hour minimum payment for a 45-minute training session would mean SCC does not permit employees this flexibility. The intent is for an employee to be able to opt to complete the training when they want but receive the same payment they would have if rostered on. Training would not be rostered in isolation and the 2-hour minimum would never be triggered Removing this will disadvantage employees |
| 9.7 | Clause 9.10 of the agreement captures this provision “Subject to the provisions of 9.7(1) where an Employee commences a shift and less than 10 hours have passed since the end of a previous shift, the Employee shall be paid overtime until they have had 10 consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence” |
| 11.2 | This is a non-monetary feature. Flexibility to alter rosters is required to maintain a continuity of care. Payment of above Award rates and additional above award conditions are in place for the purpose of such flexibilities, otherwise SCC would simply apply the Award. |
| 12.1(c) | This is a historical provision in place to avoid the potential for emergency situations where a resident is not receiving care. It has never occurred in practice and is unlikely to do so. If it were, the double time for overtime and above award provisions may compensate for the difference. |
| 19.4 | This is incorrect and does not recognise that the Agreement provides the casual loading in addition to the penalty, whereas the Award is 200% on the base rate. The end result is 25% casual loading and 175% Sunday rate for a total of 200%. Further, this increases the gap between the Agreement and Award rate, as the lowest earning casual classification will be $1.35 per hour above the award, with the highest earning classification being $11.01 per hour above the award on Sundays |
| 21.3 | The minimum time worked is lower for call outs in the Agreement, but the on-call allowance is higher to compensate. $22.47 total vs $8.50 per hour. If an employee works for 3 or more hours on-call then they will receive a higher payment under the Agreement |
| 22.2 | Uniforms are provided. The laundry allowance is set off by above award rates and conditions. |
| 23.12 | The employee must still accrue more than 8 weeks to be directed to take leave. There must still be 6+ weeks remaining. Under the Award the employee must take a minimum of 1 week, under the Agreement the employee may take it in lower chunks if they prefer. This allows more flexibility for the employee under the Agreement. |
| 25 | This disregards the fact that employees receive the extra leave on top of a public holiday penalty The employee receives a greater benefit under the Agreement than the Award provided they work 7 or fewer public holidays. It is unlikely that anyone would be working more than that, but if they did, the above award conditions may compensate |
| 35.8 | This is a non-monetary difference and it is unclear how to approach from a BOOT perspective SCC asserts that the requirement to give notice so the company can replace key roles should not be considered a problem for people. Notice periods are common and accepted |
| 43 | This is non-monetary and unclear from a BOOT perspective. The Agreement clause has the same practical function as the Award |
| 44 | There have never been any requests in this respect, however the entitlement is to unpaid time off and nothing prevents this being arranged |
Consideration
Procedural fairness ground of appeal
[25] In relation to the UWU’s procedural fairness ground of appeal, we do not consider this ground has sufficient merit to justify the grant of permission to appeal. There is no dispute that the UWU was served with and thus was aware of the application for approval of the Residential Care Agreement at the time it was filed. Rule 24(3) of the Fair Work Commission Rules 2013 provides, in substance, that an employee organisation that is a bargaining representative for a non-greenfields enterprise agreement and wants to advise the Commission that it supports or opposes approval of the agreement or disagrees with one or more statements made in the employer’s Form F17 declaration must lodge a Form F18 declaration before the Commission approves the agreement. There is no room for doubt that the UWU was aware of this obligation. It is true that there is no time prescribed for the filing of the Form F18 declaration, but the obligation rests with the employee organisation to ensure that the declaration is filed in a timely way before the Commission approves the agreement.
[26] The application for approval of the Residential Care Agreement was, as earlier stated, filed on 2 April 2020. The Commission’s standard letter, which is sent to applicants and bargaining representatives in relation to applications for approval of enterprise agreements, was sent to the UWU on 6 April 2020. That letter relevantly stated that a party intending to file a Form F18 declaration must advise the Commission of this within 7 days of the application being filed, which in this case meant that such advice had to be communicated by 9 April 2020. It may be accepted that the UWU gave the requisite advice to the Commission within this timeframe, albeit it was sent to the chambers of a member who did not have carriage of the matter rather than being filed in the proper way. However, the fact that the UWU had given this advice did not mean that it thereafter had an unlimited time period to file its Form F18 declaration or that the Commission would freeze its approval processes until the declaration was filed. The Commission’s standard letter of 6 April 2020 advised the UWU of the potential timeframes for approving agreements, which included that a decision would not be made within 7 days of the application being filed (meaning it might be made thereafter) and that, if undertakings were not required, 50% of applications would be finalised within 3 weeks and 100% within 8 weeks. There was no basis for the UWU to assume that the Commission would require undertakings to approve the Residential Care Agreement, particularly in circumstances where the ANMF and the HSU supported its approval. The UWU was therefore on notice that there was a real possibility that Southern Cross’s application would be determined by 23 April 2020 and a high probability that this would occur by 28 May 2020. It was incumbent upon the UWU to act with these timeframes in mind.
[27] As it turned out, the decision to approve the Residential Care Agreement was issued on 8 May 2020, over 4 weeks after the UWU gave advice that it intended to file a Form F18 declaration. That timeframe was sufficient to allow the ANMF and the HSU to file their Form F18 declarations in relation to the agreement and we note, in addition, that the UWU was able to file its Form F18 declarations in relation to the Mental Health Agreement and the Home Care Agreement within a comparable timeframe. In the circumstances, there is no reasonably arguable basis for the contention that the UWU was not given a fair opportunity to file its Form F18 declaration and thus indicate that it wanted to be heard in opposition to the approval of the Residential Care Agreement. Its generalised reference to the circumstances of the COVID-19 pandemic does not take the matter any further. The UWU’s failure to be heard was the result of its own inaction and not any error on the part of the Commissioner, constructive or otherwise.
BOOT ground of appeal
[28] In relation to the BOOT ground of appeal, we note that the UWU’s submissions make some reference to the BOOT not being met in relation to employees covered by the Nurses Award. Since the UWU does not under its rules have the capacity to enrol as members enrolled nurses covered by the Nurses Award, it is unclear on what basis it advances such a submission as a “person aggrieved” for the purpose of the exercise of the appeal facility afforded by s 604 of the FW Act. We additionally note that the ANMF, the organisation with coverage of employees under the Nurses Award, supported the approval of the Residential Care Agreement on the basis of an analysis of the benefits and detriments of the agreement contained in its Form F18 declaration. For these reasons, we do not grant the UWU permission to appeal in relation to the Commissioner’s satisfaction that the BOOT was passed in respect of the Nurses Award.
[29] In respect of the Aged Care Award, although the UWU has in its submission provided a list of the provisions of the Residential Care Agreement which are said to be less beneficial than the Aged Care Award, it has not provided any analysis or modelling to show that the agreement does not pass the BOOT vis-à-vis this award once the more beneficial provisions in the agreement are taken into account. As was stated in the recent Full Bench decision in SDA v Prouds Jewellers Pty Ltd: 3
“[20] …the specific contentions raised in the SDA’s appeal concerning clause 28.5 and clauses 28.10-28.13 of the Award and the absence of equivalent provisions in the Agreement are intended to support the overall proposition that the Deputy President erred in finding that the Agreement, with the undertakings she accepted, passed the BOOT. However, the SDA’s appeal submissions did not include any analysis or modelling to demonstrate that, if their arguments concerning the proper construction of these provisions of the Award is accepted, the result must be that the Agreement does not pass the BOOT. It may be accepted that, as the Deputy President observed in the interim decision, that the margin between the wages rates in the Agreement and those in the Award was “slim”, but that did not absolve the SDA of the need, as the appellant, to advance a persuasive argument that some identifiable segment of the workforce covered by the Agreement would not be better off under the Agreement under some plausible working scenario. In the absence of any such submission, there is no basis for us to be satisfied that the determination of the matters raised by the SDA might have any bearing upon the Deputy President’s decision to approve the Agreement.”
[30] However because the issues concerning the Aged Care Award raised by the UWU in its appeal submissions were not (understandably) the subject of any specific consideration in the Commissioner’s decision, we will for more abundant caution grant permission to appeal in respect of this aspect of the appeal to ensure that no error has occurred concerning the Commissioner’s satisfaction that the Residential Care Agreement passed the BOOT in relation to this award.
[31] It appears to us that the major issues raised in the UWU’s list of detriments which require analysis are as follows:
(1) Shift workers and leave entitlements
The UWU is correct to say that that there is no definition of a shift worker for the purposes of the NES in the Residential Care Agreement. However, clause 23.1 of the agreement provides directly that “Continuous Shift Workers” providing direct client care are entitled to 6 weeks’ annual leave, and under clauses 23.2 and 23.3 employees providing direct client care who are not required to work on public holidays and “Continuous Shift Workers” not providing direct client care are entitled to 5 weeks’ annual leave. This entitlement is as generous or more generous than the entitlements of equivalent workers under the Aged Care Award operating in conjunction with the NES. “Continuous Shift Employee” (which is presumably the same as a “Continuous Shift Worker”) is defined in clause 6 to mean an employee regularly rostered to work their ordinary hours outside of 6.00am to 6.00pm, Monday to Friday. This is a definition which we consider to be as broad as that of a shiftworker for the purposes of the NES in clause 28.2(a) of the Aged Care Award.
(2) Public holidays
The Residential Care Agreement provides in clauses 24.5 and 24.6 for lower penalty rates for direct care workers who work on public holidays, but they receive an additional week’s annual leave instead. The UWU has not modelled any scenario demonstrating that any employee working public holidays would not be better off under the agreement having regard to the higher rates of pay and the compensating additional annual leave entitlement.
(3) Part-time employees
In respect of part-time employment, clause 10.3 of the Aged Care Award requires in addition to “reasonably predictable hours of work” that there be agreement prior to the commencement of employment as to a “regular pattern of work” including as to the number of hours and the days of the week to be worked each week, and the starting and finishing times each day. Clause 8.2 of the Residential Care Agreement is less prescriptive than this, in that it defines a part-time employee as one “regularly rostered to work fewer hours per fortnight that those prescribed for a Full Time Employee but may work up to 76 hours per fortnight”. However, clauses 10.1 and 10.3 of the agreement also provide for each employee to have a written contract of employment specifying the hours the employee is engaged to work each fortnight, and under clause 10.6 this may only be changed by agreement in writing. Additionally, under clause 10.2, Southern Cross acknowledges that its workforce is predominantly part-time and commits itself to “providing its employees with maximisation of guaranteed minimum hours and shift certainty and predictability, subject to operational and client requirements”. Both the agreement (in clause 8.4) and the award (clauses 10.3(c) and 25.1(b)(iii)) provide a mechanism for part-time employees to work in excess of their rostered hours at ordinary time by agreement subject to a ceiling of 76 hours per fortnight. We are not persuaded that any detriment arises under the part-time provisions of the agreement that would be sufficient to render the agreement not better off overall for part-time employees once the other benefits of the agreement are taken into account.
(4) Minimum engagement
Clause 9.5 of the Residential Care Agreement provides for a minimum shift length of 3 consecutive hours, subject to minima of 1.5 hours for staff meetings and 2 hours for attendance at compulsory training. Clause 8.8 also provides for a minimum engagement of 3 hours for casual employees unless the employee requests 2 hours. Clause 22.7 of the Aged Care Award provides for a minimum payment of 4 hours for full-time employees “for each engagement in respect of ordinary hours of work”, and 2 hours’ minimum engagement for part-time and casual employees. We do not consider that minimum engagement provisions applying to full-time employees are of much significance, since they are guaranteed 38 hours’ pay per week in any event. However, they are of much greater significance for part-time employees and casual employees. We consider that the benefit for them of a higher minimum engagement for normal work would far outweigh any detriment occasionally experienced in respect of attendance at staff meetings.
[32] In respect of each of the other matters raised by the UWU, we accept the response advanced by Southern Cross rebutting any contention of detriment. We also take into account the more beneficial aspects of the Residential Care Agreement which, in addition to the higher rates of pay, include:
• all overtime hours attract a 200% penalty rate under the agreement compared to the first 2 hours at 150% and 200% thereafter for overtime under the Aged Care Award;
• the long service leave entitlement is 13 weeks after 10 years’ service compared to 13 weeks’ leave after 15 years’ service in the Western Australia legislation 4 under which Southern Cross operates;
• 6 weeks’ paid parental leave;
• 2 days’ paid and 3 days’ unpaid family/domestic violence leave per calendar year;
• 6 weeks’ annual leave for all direct care staff working continuous shifts and public holidays (as earlier discussed);
• 5 days’ paid professional development leave; and
• afternoon shift penalty of 15% under the agreement compared to 12.5% under the award.
[33] For the above reasons, we consider that it was reasonably open for the Commissioner to reach the conclusion that, for employees covered by the Aged Care Award, the Residential Care Agreement passed the BOOT. Further, we agree with that conclusion. We reject the UWU’s contention that the Commissioner’s decision was attended by any appealable error in this respect and we dismiss the appeal.
Orders
[34] We order as follows:
(1) Permission to appeal is granted in respect of the second ground of the UWU’s appeal insofar as it challenges the Commissioner’s satisfaction that the Residential Care Agreement passed the BOOT in respect of employees covered by the Aged Care Award.
(2) Permission to appeal is otherwise refused.
(3) In respect of the aspect of the appeal for which permission to appeal has been granted, the appeal is dismissed.
VICE PRESIDENT
Hearing details:
Determined on the basis of written submissions filed by the parties.
Final written submissions:
UWU – 2 and 27 July 2020.
Southern Cross – 22 July 2020.
Printed by authority of the Commonwealth Government Printer
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1 [2020] FWCA 2416
2 [2015] FWCFB 3270
3 [2020] FWCFB 4864
4 Long Service Leave Act 1958 (WA), s 8(2)
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