Uniting AgeWell Limited

[2025] FWCA 1830

[2025] FWCA 1830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Uniting AgeWell Limited

(AG2025/1210)

UNITING AGEWELL ENTERPRISE AGREEMENT (TASMANIA) 2025

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 30 MAY 2025

Application for approval of the Uniting AgeWell Enterprise Agreement (Tasmania) 2025

1. An application has been made for approval of an enterprise agreement known as the Uniting AgeWell Enterprise Agreement (Tasmania) 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Uniting AgeWell Limited. The Agreement is a single enterprise agreement.

1. The Health Services Union (HSU) and Australian Nursing and Midwifery Federation (ANMF) being bargaining representatives for the Agreement, have each 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. Both Unions support approval of the Agreement, although the HSU’s support was qualified and related to its view that the Agreement does not pass the better off overall test.

1. The culmination of correspondence between the Commission and the parties regarding issues raised by the HSU and the Commission is the provision by the Employer of written undertakings. A copy of the undertakings is attached in Annexure A. The undertakings resolve some, but not all of the HSU’s concerns.

1. The HSU raises an issue concerning the appropriate comparator for the purposes of the BOOT for two classifications of employees: Home Care Admin Assistant and Admin Officer. 

1. The Agreement applies to all Residential Employees and Home Care and Community Employees employed in Tasmania in the classifications in Appendix A.  Appendix A details classification structures for Nurses; Aged Care Employees; Home Care Employees and Community Employees.   A “Home Care Employee” means an employee who would otherwise be covered by Schedule F of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). A “Community Employee” means an employee who would otherwise be covered by Schedule B of the SCHADS Award (the SACS stream).

1. The Agreement classifications for Home Care Employees are:

   ·     Home care employee (unqualified)

   ·     Home care employee (qualified)

   ·     Home care employee (specialist)\

   ·     Home Care Worker Team Leader

   ·     Home Care Worker Leader Operations

   ·     Care Organiser

   ·     Care Advisor

   ·     Admin Assistant

   ·     Admin Officer

1. Other than Admin Assistant and Admin Officer, the remaining Home Care classifications have been matched to classifications in Schedule F of the SCHADS Award.  However, Schedule F does not contain classifications for clerical or administrative employees.  For the purposes of the BOOT, the employer has mapped these two roles to classifications in the Clerks Private Sector Award 2020.

1. The HSU contends that this is not correct, and they should be mapped to classifications in Schedule B of the SCHADS Award. The HSU submits that the Clerks Award does not apply to these employees because clause 4.3(a) of the Clerks Award provides that it does not cover “employers covered by a modern award that contains clerical classifications.”  It submits that Schedule B of the SCHADS Award contains clerical classifications and covers the employer, consequently the Clerks Award does not apply.

1. I do not agree. The SCHADS Award relevantly covers employers in the ‘social and community services sector’ (SACS) and the ‘home care sector’.  Schedule B contains the classification structure for the SACS sector, and Schedule F for the home care sector. The definition of the SACS sector includes the provision of personal care in a residential setting to a person with a disability, but not to aged persons.  While the employer is covered by the SCHADS Award and operates in both the home care and SACS sectors of the industry, the employees engaged in its home care operations are employed under Schedule F and not Schedule B.  Whilst Schedule B contains classifications that encompass administrative work, those classifications do not apply to the employees performing work under Schedule F.  Schedule F does not include classifications relating to administrative duties.

1. I consider that clause 4.3(a) of the Clerks Award must be read to mean that it does not cover “employers covered by a modern award that contains clerical classifications” which would otherwise cover the relevant employees.  If I am wrong about that, and clause 4.3(a) does apply and the Clerks Award does not cover the Admin Assistant and Admin Officer, it does not follow that such roles would fall within the classifications covering clerical duties in the SACS stream. They remain employed as Home Care Employees. The consequence of this would be that the relevant instrument for the purposes of the BOOT would be the Miscellaneous Award 2020. When assessed against either the Clerks Award or the Miscellaneous Award, I am satisfied that employees classified as Home Care Admin Assistant and Admin Officer are better off overall.

1. Undertaking 1 provides replacement rates for a Community Employee Level 5 in Schedule A of the Agreement.  The rates in Schedule A of the Agreement for these employees were incorrectly recorded due to a typographical error that the Undertaking seeks to address.  For Community Employee Level 5 PP3, the corrected rate is higher than in the Agreement. However, for PP1 and PP2 the corrected rate is lower than in the Agreement. The HSU contends that the Undertaking cannot be accepted because it would cause financial detriment to employees in that classification. However, the Employer has confirmed that no such financial detriment arises as this is a new classification and there are no employees presently employed in those classifications.

1. The HSU also points to other detrimental terms in the Agreement which I have considered in my overall assessment of whether the employees are Better Off Overall.

1. 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 June 2025. The nominal expiry date of the Agreement is 1 January 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE529221  PR787788>

Annexure A