Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland

[2020] FWCA 3559

[2020] FWCA 3559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland
(AG2018/5527)

WESLEY MISSION QUEENSLAND CARE AND SUPPORT EMPLOYEES ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER WILSON	MELBOURNE, 16 JULY 2020

Application for approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018.

[1] This decision follows and is to be read in conjunction with a decision by me published 18 June 2020. 1 The decisions concern an application for approval of an enterprise agreement known as the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland (referred to as WMQ in this decision). The Agreement is a single enterprise agreement.

[2] The chronology of the matter was set out by me in the earlier decisions in this matter. This decision concerns a final outstanding matter of shift penalties about which I was not satisfied that all employees would be better off overall if the Agreement were to be approved by me with the 4 June 2020 version of an undertaking on the subject, referred to in the decisions as undertaking 8.

[3] To remedy my outstanding concern, I invited a further undertaking to be provided by WMQ increasing the shift penalties for two classes of employees.

Better Off Overall Test – Shift Penalties

[4] In the 18 June 2020 decision, I articulated that I held a concern that the form of undertaking 8 provided by WMQ on 4 June 2020 did not entirely remedy concerns I held about the Better Off Overall Test (BOOT).

[5] Undertaking 8 applies to employees who are covered by the Aged Care Award 2010.

[6] Clause 26 of the Aged Care Award 2010 provides for shiftwork in the following terms:

“26. Shiftwork

[Varied by PR995161]

26.1 Shift allowances and penalty rates

[26.1 varied by PR995161 ppc 23Mar10]

Employees working afternoon or night shift will be paid the following percentages in addition to the ordinary rate for such shift. Provided that employees who work less than 38 hours per week will only be entitled to the additional rates where their shift commence prior to 6.00 am or finish subsequent to 6.00 pm.

(a) Afternoon shift commencing at 10.00 am and before 1.00 pm—10% of the ordinary hourly rate

(b) Afternoon shift commencing at 1.00 pm and before 4.00 pm—12.5% of the ordinary hourly rate

(c) Night shift commencing at 4.00 pm and before 4.00 am—15% of the ordinary hourly rate

(d) Night shift commencing at 4.00 am and before 6.00 am—10% of the ordinary hourly rate

[26.2 inserted by PR995161 ppc 23Mar10]

26.2 An employee entitled to a shift allowance under clause 26.1, will be paid the shift allowance for the entire shift.

[26.3 inserted by PR995161 ppc 23Mar10]

26.3 For the purposes of clause 26.1, “ordinary hourly rate” means the appropriate weekly rate divided by 38.” 2

[7] Clause 7.10 of the Agreement provides for shiftwork in these terms:

“7.10. Afternoon and Night Shifts - Penalty Payment

7.10.1. Afternoon Shift - Penalty Payment

(a) For all employees employed prior to the commencement date of this agreement, afternoon shift means a shift commencing at or after 2.00pm but before 6.00pm, or where the majority of hours fall between 2.00pm and 6.00pm.

(b) For all employees employed on or after the commencement date of this agreement, afternoon shift means a shift commencing at or after 12 noon but before 6.00pm.

(c) Afternoon shift workers shall be paid an additional 12.5% for each shift of ordinary hours.

7.10.2. Night Shift - Penalty Payment

(a) Night shift means a shift commencing at or after 6:00pm or before 6:00am the following day, and where the majority of hours are worked between 6:00pm and 6:00am.

(b) Night shift workers shall be paid an additional 15% for each shift of ordinary hours.

7.10.3. Where an employee works an equal number of hours in any combination of day, afternoon or night shifts in a single engagement, the applicable penalty shall be determined in accordance with the time the shift commenced.”

[8] I found in relation to the 4 June 2020 version of undertaking 8 that it was likely that two classes of employees will not be better off overall if the Agreement were to be approved by me without a further undertaking. The two classes of employees are:

● Aged Care Award employees who commence their shift at or after 4 pm and before 6 pm (referred to by me as Early Night Shift Employees); or

● Aged Care Award employees who commence their work in the early morning, before 6 am and who do not work a majority of hours before 6 am (referred to me as Early Morning Shift Employees):

[9] The 18 June 2020 decision sets out the nature of the concern held by me:

“[26] The first situation, of Early Night Shift Employees arises because if such an employee worked under the Aged Care Award they would be paid as a night shift employee and eligible for a 15% penalty since they would be engaged in a “shift commencing at 4 pm and before 4 am” (Clause 26.1(c)). In contrast and working under the Agreement, the same employee would not be a night shift employee, since that requires an employee to work “a shift commencing on or after 6 pm or before 6 am” together with the requirement that the majority of hours be worked within the range (Clause 7.10.2). Instead, under the Agreement the employee would be an afternoon shift employee, whether or not employed prior to or after the commencement of the Agreement. As an afternoon shift employee, they would be entitled to a 12.5% penalty (Clause 7.10.1 (c)). In contrast night shift employees are paid a 15% penalty under both the Award and the Agreement.

[27] The second situation is that of an Early Morning Shift Employee, involving a person working under the Agreement starting before 6 am and who does not work a majority of their hours between 6 pm and 6 am. In this case the employee would not be a night shift employee under the Agreement as modified by Undertaking 8, for the reason that the majority of their hours worked would not be between 6 pm and 6 am. Under the Award, such an employee would be classified as a night shift employee if they commenced work at 4 am and before 6 am and thereby entitled to a 10% penalty (Clause 26.1 (d)).” 3

[10] In compliance with my Directions at [79] of the 18 June 2020 decision, WMQ provided an amended form of undertaking 8 on 23 June 2020. The 23 June 2020 undertaking 8 is in the following terms:

“8. That employees who:

are covered by the Aged Care Award; and

commence work at or after 10am and before 4pm;

will receive the afternoon shift allowance referred to in clause 7.10.1(c).

8A That employees who:

are covered by Aged Care Award; and

commence work at or after 4pm and before 6am the following day,

will receive the night shift allowance referred to in clause 7.10.2(b).” 4

[11] The 23 June 2020 version of undertaking 8 provides a loading for the two classes of employees identified by me as having a BOOT concern regardless of whether they work a majority of hours between 6pm and 6am. In the 18 June 2020 decision I proposed an undertaking that would provide a 15% loading for Early Night Shift Employees and a 10% loading for Early Morning Shift Employees, the employer has instead provided an undertaking which provides a loading of 15% for both classes of employees.

[12] The 23 June 2020 version of undertaking 8A also applies the shift loading to all classifications of employees covered by the Aged Care Award, rather than only the lower-level classifications identified by me as being a BOOT concern.

[13] I sought the views of the ANMF and any other bargaining representative on the amended undertaking, which were to be filed and served by no later than 12.00PM, Thursday, 2 July 2020. The ANMF failed to comply with this Direction. I followed up with the union with email correspondence from my Chambers at 2.22PM on 2 July 2020 seeking the views of the union on the 23 June 2020 undertakings to be provided by 5.00PM 3 July 2020. Due to an automated reply received from Mr Crank of the ANMF, the correspondence was forwarded to the secretary of the QNMU and the nominated individual in the automated reply email providing additional time to provide any views, with an extension until 4.00PM, Monday 6 July 2020.

[14] Mr Crank provided an email response providing the union’s views on the amended undertaking after 4.00PM on 6 July 2020.

[15] The correspondence from Mr Crank provided that the union approves of the amended undertaking 8 except for maintaining two concerns:

“The first exception to our support concerns the slip-back to references in both undertakings to a “shift allowance” which does not exist as such in the Agreement. In the previous version of undertaking 8, the Applicant had agreed with our suggestion that the reference in it to a “shift allowance” be replaced by “an additional 12.5% for each shift of ordinary hours ”as described at [13]-[15] of Commissioner Wilson’s decision of 18 June 2020. We make the same suggestion in relation to the latest version of undertaking 8. We make a similar suggestion in respect of undertaking 8A, although the relevant percentage is 15%.

The second exception to our support concerns the absence of terms in undertaking 8 and 8A about the terms of those undertakings replacing the less beneficial terms of the Agreement in clauses 7.10.1 (Afternoon Shift – Penalty) and in 7.10.2 (Night Shift – Penalty). The consequence of that absence is that if the undertakings are accepted, and the Agreement was approved by the FWC, there would be conflict between those undertakings and those clauses of the Agreement.” 5

[16] Following receipt of the ANMF’s views I caused further email correspondence to be issued to WMQ to confirm whether they were inclined to make changes to the undertaking so as to be consistent with the ANMF’s invitation as set out above.

[17] A further amended undertaking 8 was provided by WMQ on 7 July 2020 in the following terms:

“8. That employees who:

are covered by the Aged Care Award; and

commence work at or after 10am and before 4pm;

will receive an additional 12.5% for each shift of ordinary hours worked by them.

8A That employees who:

are covered by Aged Care Award; and

commence work at or after 4pm and before 6am the following day,

will receive an additional 15% for each shift of ordinary hours worked by them. For the avoidance of doubt, this clause 8A is intended to replace clause 7.10.2 for the category of workers referred to herein.” 6

[18] The 7 July 2020 version of undertaking 8 is amended to address the ANMF’s first concern by removing the reference to a “shift allowance”. On the ANMF’s second suggestion, WMQ has not made the suggested change and has advised “that undertaking 8 is merely intended to supplement rather than to replace clause 7.10.1 for Aged Care Award covered employees. For that reason, we have not taken up Mr Crank's second suggestion in that regard.” 7

[19] The 7 July 2020 version of undertakings offers Aged Care Award employees working shift work the same or better penalty rate arrangements than would be provided by the Aged Care Award 2010.

Early Night Shift Employee

[20] An Early Night Shift Employee working under the Aged Care Award 2010 would be paid as a night shift employee and eligible for a 15% penalty as they would be engaged in a “shift commencing at 4 pm and before 4 am” (Clause 26.1(c)).

[21] Working under the Agreement with the 7 July 2020 undertaking 8 the employee would be an afternoon shift employee, whether employed prior to or after the commencement of the Agreement and would be entitled to a 15% penalty (Clause 7.10.1 (c)).

[22] The penalty the Early Night Shift Employee would be entitled to is therefore the same (15%) under both the Award and the Agreement.

Agreement Classification	Award Classification 8	Award wages (per week and per hour)		Agreement – hourly rates from Oct. 2019	Agreement – 8 hours at 115%	Award – 8 hours at 115%	Difference
CRE Level 2.1	Aged care employee - Level 2	$820.20	$21.58	$22.00	$202.40	$198.57	$3.83
CRE Level 2.2	Aged care employee - Level 3	$852.40	$22.43	$22.51	$207.09	$206.37	$0.72

[23] The analysis demonstrates that CRE Level 2.1 and Level 2.2 employees under the Agreement would be better off overall.

Early Morning Shift Employee

[24] An Early Morning Shift Employee working under the Aged Care Award 2010 would be paid as a night shift employee if they commenced work at 4 am and before 6 am and would be entitled to a 10% penalty (Clause 26.1 (d)).

[25] Working under the Agreement the employee starting at 4 am and before 6 am would be paid overtime of 150% (Clause 3.2(i) and 7.6.1(a)).

[26] With the 7 July 2020 undertaking the employee under the Agreement would be entitled to a 15% penalty for the work performed after 6 am.

[27] The penalty the Early Morning Shift Employee would be entitled to is therefore different under the Award and the Agreement.

Agreement Classification	Award Classification	Award wages (per week and per hour)		Agreement – hourly rates from Oct. 2019	Agreement – 5.45 am start; 5hours worked			Award – 5.45 am start, 5 hours worked
					0.25 hours OT a 150%	4.75 hours at 115%	Total Pay under Agreement	5 hours at 110%	Difference
CRE Level 2.1	Aged care employee - Level 2	$820.20	$21.58	$22.00	$8.25	$120.18	$128.43	$118.71	$9.72
CRE Level 2.2	Aged care employee - Level 3	$852.40	$22.43	$22.51	$8.44	$122.96	$131.40	$123.37	$8.03
CRE Level 2.3	Aged care employee - Level 3	$852.40	$22.43	$23.05	$8.64	$125.91	$134.55	$123.37	$11.18
CRE Level 2S	Aged care employee - Level 3	$852.40	$22.43	$24.00	$9.00	$131.10	$140.10	$123.37	$16.73
CRE Level 3.1	Aged care employee - Level 4	$862.50	$22.70	$24.07	$9.03	$131.48	$140.51	$124.84	$15.67

[28] The analysis demonstrates that employees engaged at CRE Level 2.1 to CRE Level 3.1 under the Agreement would be better off overall if the 7 July 2020 further amended undertaking is accepted by the Commission.

[29] The overall analysis of the 7 July 2020 undertaking 8 shows the situation for Aged Care Award employees who commence their shift at or after 4 pm and before 6 pm (Early Night Shift Employees) or employees who commence their work in the early morning, before 6 am and who do not work a majority of hours before 6 am (Early Morning Shift Employees) are better off overall.

[30] I am not persuaded by the ANMF’s suggestion that accepting the 7 July 2020 undertakings would cause conflict between the undertakings and the clauses of the Agreement. Section 191 makes it plain that an undertaking is taken to be a term of the agreement, as the agreement applies to the employer. The further amended undertaking given on 7 July 2020 may be read as a supplement to clause 7.10.1.

[31] I am therefore satisfied that undertaking 8 as amended resolves the concern I held that the 4 June 2020 form of the undertaking would cause financial detriment to two classes of employees.

Conclusion

[32] As found by me in the 18 June 2020 decision:

“[76] In conclusion:

● I am satisfied that while there was a failure to explain to employees the effect of the parties bound clause that such was not a deliberate failure. I am satisfied it was instead a minor procedural or technical error with employees not likely to be disadvantaged by the error. In turn, a finding may be made that the error does not prevent a finding the Agreement was genuinely agreed;” 9

[33] In the circumstances, I am satisfied that the failure of the explanation of the parties bound clause constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Having regard to the content of the statutory declarations filed over the history of this matter I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[34] The Employer has provided written undertakings. 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. The undertakings are taken to be a term of the Agreement.

[35] 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.

[36] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[37] The Agreement lodged was not compliant with the signatory requirements under s.185(2) of the Act and the Regulations for signing an enterprise agreement. On 19 September 2019 WMQ filed an amended signatory page for the Agreement with differing signatories to those who signed the Agreement previously lodged and sought a correction pursuant to s.586 of the Act to incorporate these new signatories. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[38] The Australian Workers’ Union and United Workers’ Union 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 these organisations.

[39] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
23 July 2020. The nominal expiry date of the Agreement is 30 September 2021.

COMMISSIONER

Annexure A

 1   [2020] FWC 3090.

 2   MA000018.

 3   [2020] FWC 3090.

 4   Undertakings, 23 June 2020.

 5   Email from Mr Crank to the Commission, 6 July 2020.

 6   Undertakings, 7 July 2020.

 7   Email from MinterEllison filing the amended undertakings, 7 July 2020.

 8   Classification matchings taken from the Form F17 Employer’s Support Statutory Declaration.

 9   [2020] FWC 3090.

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