Vasey RSL Care Limited

[2023] FWCA 1568

[2023] FWCA 1568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vasey RSL Care Limited

(AG2023/1345)

VASEY RSL CARE LTD ENTERPRISE AGREEMENT 2023

Aged care industry
COMMISSIONER LEE	MELBOURNE, 1 JUNE 2023

Application for approval of the Vasey RSL Care Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Vasey RSL Care Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Vasey RSL Care Limited. The Agreement is a single enterprise agreement.

1. 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.

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 Australian Nursing and Midwifery Federation and the Health 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 the organisations.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 23(b) – Public Holidays

·   Clause 24(c)(i)(A) – Personal/Carer’s Leave

However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 June 2023. The nominal expiry date of the Agreement is 31 March 2027.

Variation

1. On 25 May 2023, the Applicant requested, in accordance with section 586 of the Act, the removal of clause 23(e) from the Agreement, which was incorrectly retained in the Agreement. On 29 May 2023 my Chambers sent an email seeking further submissions regarding the removal of clause 23(e) from the Agreement. On 30 May 2023, the Applicant submitted the following:

“Vasey RSL Care (‘VRSLC’) submits that the removal of sub-clause 23(e) from the Agreement accurately reflects the agreement reached regarding the payment of wages on Public Holidays for casual employees. This submission is supported by the email from Cameron Granger of the HWU dated 29 May 2023 and from Leigh Hubbard of the ANMF dated 30 May 2023. Specifically, Mr Hubbard’s correspondence sets out clause 23(e), as it currently appears in the Vasey RSL Care Ltd Nurses Enterprise Agreement 2019 (‘Nurses 2019 Agreement), and further explains that the rationale for its inclusion in the Nurses 2019 Agreement is no longer applicable.

The penalty rates which apply on Public Holidays are accurately and comprehensively captured in the table set out at sub-clause(f), to the exclusion of sub-clause(e). The penalty rates, as set out in the table, reflect VRSLC’s current practices, with the exception of the rate for a casual RN where a Public Holiday falls between Monday and Friday (being 250%) … 

As such, the parties did not intend to retain clause 23(e) in the Agreement, and its inclusion represents an error which would likely confuse the reader. It is on this basis, that VRSLC respectfully request that the Fair Work Commission exercise its power pursuant to section 586 of the Fair Work Act 2009 (Cth) to allow for this correction.”

1. On 1 June 2023 my Chambers sent an email to the Applicant indicating that I am of the view that s.218A of the Fair Work Act would be the appropriate section of the Act to consider, as opposed to s.586 of the Act.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1):

(a)   on its own initiative; or

(b)   on application by any of the following:

(i)one or more of the employers covered by the agreement;

(ii)an employee covered by the agreement;

(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the

variation operates from the day specified in the decision to vary the      agreement.”

1. Considering s.218A(2)(1) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative.

1. I am satisfied that the agreement should be varied to correct the error by removing the reference to clause 23(e) which provides “For the purpose of this Sub-clause ordinary pay per hour with respect to time worked by a casual Employee is an amount equal to the hourly rate as set out in Appendix 1 for the class of work performed plus 25%.”

1. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by varying clause 23(e) of the Agreement.

1. The variation will operate from 8 June 2023.

COMMISSIONER

Annexure A

[1]PR762739.

Printed by authority of the Commonwealth Government Printer

<AE520191  PR762683>