Uniting (NSW.ACT)

[2022] FWCA 2650

[2022] FWCA 2650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Uniting (NSW.ACT)

(AG2022/2270)

Uniting Burnside Enterprise Agreement 2021

Social, community, home care and disability services
COMMISSIONER MATHESON	SYDNEY, 4 AUGUST 2022

Application for approval of the Uniting Burnside Enterprise Agreement 2021.

1. An application has been made for approval of an enterprise agreement known as the Uniting Burnside Enterprise Agreement 2021 (Agreement). The application was made by Uniting (NSW.ACT) (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Pre-approval issues

1. The Notice of Employee Representational Rights (NERR) distributed to employees had a difference in geographical coverage compared with the coverage of the Agreement, omitting the reference to the Australian Capital Territory. The Commission sought further information about this error and the Applicant confirmed that employees in the Australian Capital Territory received the NERR as an attachment in the same email that employees in New South Wales received the NERR. Pursuant to s.188(2) of the Act, I am satisfied that this is a minor procedural or technical error, that the employees covered by the agreement were not likely to have been disadvantaged by it and that the error does not impact whether the Agreement has been genuinely agreed.

Voting issues

1. It is declared in the Form F17 declaration that, on 1 June 2022, an email was sent to employees attaching a ‘Notice of Vote’ which notified employees about the time and place at which the vote was to occur and the voting method to be used. A copy of the Notice of Vote was provided as evidence.

1. However, the Australian, Municipal, Administrative, Clerical and Services Union (ASU), a bargaining representative for the Agreement, raised a concern that it had been advised that some employees were not advised prior to voting of a requirement to enter their name and employee number on the voting software used to enable their vote to be cast. In relation to this concern, the Applicant submitted that employees were advised about the voting process, before and during the voting period, and there was no impact on employees’ ability to vote by the close of the ballot on 21 June 2022. In particular, it submitted that all employees received voting instructions and reminders and were informed that the vote was being conducted via a secret online ballot by an independent external provider, Elections Australia. Prior to voting, the Applicant sent a number of communications to all relevant employees covered by the Agreement, which contained information about voting, including emails dated 1, 14 and 16 June 2022 that were provided to the Commission.

1. On the morning of 16 June 2022, the Applicant became aware that:

· some employees had not received the initial email of 16 June 2022 and another email was sent to ensure all employees received the voting instructions; and

· the voting platform was not accepting the ‘0’ in front of the employee number and so a follow up email was sent shortly after to inform employees to drop the ‘0’ in front of their employee number on the voting platform.

1. Further reminder communications were sent during the voting period advising employees to vote and drop the ‘0’ in front of their employee number to log into the voting platform.

1. Copies of these follow up communications on 16, 20 and 21 June 2022 were provided to the Commission.

1. Having considered the further information provided by the Applicant, I am satisfied that the requirements of s.180(3) have been met and that the actions taken by the Applicant to address the technical issues that arose in relation to the voting system meant that those technical issues did not impact genuine agreement.

NES issues

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 3.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

BOOT issues

1. A number of issues were raised by the Commission and ASU giving rise to questions about whether the Agreement meets the better off overall test. A hearing was held on 26 July 2022 to discuss those issues. Among those issues were the following:

Sleepover shifts

1. Clause 26.1(b)(i) of the Agreement provides that the span of hours for a sleepover will not be less than eight hours or more than 10 hours on any one night. Clause 25.7(c) of the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), the award relevant for the purposes of the better off overall test, provides that the span of hours for a sleepover will be a continuous period of eight hours and overtime may be payable after eight hours. The Applicant provided an undertaking to address this concern.

Closed period employees

1. Clause 6.1 of the Agreement includes a definition of a ‘closed period employee’, being an employee who is employed on a fixed-term or maximum term contract for a specified period or specified task under circumstances including, but not limited to, parental leave coverage and/or special projects. The ASU raised the concern that a maximum term contract typically permits an employee to be terminated prior to the end of the term of the contract thus not giving the employee the certainty or permanency or a definite fixed term of employment. The Applicant submitted that the definition is permissible under the Award and NES and is common place in the industry. While the Award does not contain a definition of the nature set out in clause 6.1 of the Agreement, it does not have the effect of prohibiting or limiting these arrangements and this concern does not impact my assessment of the better off overall test. I also observe that termination of employees by the employer could not be affected in a manner contrary to the NES and the Act.

Engagement of employees

1. Clause 12.1(a) of the Agreement provides that, at the time of their engagement, the employer will inform each employee of the basis of their employment in writing. The ASU raised a concern that it is unclear whether this includes a requirement to advise employees of their classification in writing. The Applicant submitted that there is no explicit requirement under the Award to advise employees of their classification upon commencement, however it is a part of its usual business practice to issue a letter of offer and employment contract that details an employee’s role including classification, job title, employment status, start date and other terms and conditions, thereby informing the new employee of the basis of their employment. I have considered the explanation provided by the Applicant and the terms of the Award regarding engagement and am satisfied this issue does not impact my assessment of the better off overall test.

Flex-time

1. The ASU raised various concerns relating to the flex-time provisions of the Agreement. In particular, clause 21.2 of the Agreement provides that, depending on the circumstances, additional hours are to be accrued as flex-time or the employee can request to be paid at the ordinary or overtime rate of pay as applicable. The ASU raised the concern that the Award provides for overtime to be paid as the default position and, while time in lieu can be taken, this is only by agreement. The ASU also noted that there was no provision for time in lieu or flex time in the Award in relation to weekend work.

1. During the hearing, the Applicant submitted that the practical operation of its payroll system meant that employees had the ability to make an election at the time of completing their time sheet as to whether they took flex time or payment at the applicable rate. The Applicant confirmed this in a follow up email to the Commission on 28 July 2022.  I am satisfied that this addresses the concern.

Undertakings

1. As noted above, the Applicant, as the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

Conclusion

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The ASU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A