Woden Community Service Limited
[2024] FWCA 3518
•4 OCTOBER 2024
| [2024] FWCA 3518 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Woden Community Service Limited
(AG2024/3116)
WODEN COMMUNITY SERVICE LIMITED ENTERPRISE AGREEMENT 2024
| Social, community, home care and disability services industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 4 OCTOBER 2024 |
Application for approval of the Woden Community Service Limited Enterprise Agreement 2024
Introduction
Woden Community Service Limited (the Employer) has made an application for approval of an enterprise agreement known as the Woden Community Service Limited Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Children’s Services Award 2010 (Children’s Services Award), Cleaning Services Award 2020, Fast Food Industry Award 2020, (Fast Food Award), Health Professionals and Support Services Award 2020 (HPSS Award), Restaurant Industry Award 2020 (Restaurant Award), or Social, Community, Home Care and Disability Services Industry Award 2020 (SCHADS Award),
The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the United Workers Union (UWU), were bargaining representatives for the Agreement.
National Employment Standards (NES) precedence term in Clause 7.2 of the Agreement
Appendix 3 of the Agreement provides for a definition of a household. The Act does not provide for such a definition and thus, this definition appears to go beyond the requirements set out in s. 107 of the FW Act.
Clause 77.6 of the Agreement provides that if the employee does not provide the required notice of termination, the employer will have the right to withhold monies due to the employee with a maximum amount equal to the employee's base rate of pay for the required period of notice.
These clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 7.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Allowances
The Awards provide for many general allowances which have not been included in the Agreement. The Employer has submitted that allowances which have been omitted from the Agreement do not apply to the nature of the work that it undertakes. The ASU and UWU have not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that employees will not be required to work in circumstances attracting the payment of allowances under the relevant Award which are not included in the Agreement.
Time Off in Lieu – Restaurant and Fast Food Award
Clause 20.7 of the Fast-Food Award and clause 23.5 of the Restaurant Award provide that an employee and employer may agree to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee. The period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made. Clause 30.7 of the Agreement provides that employees will be granted time off instead of payment for overtime, on an hour for hour basis. The rates of pay may not be high enough to compensate for this deficiency.
The Employer submitted that the employees covered by these Awards are working in school canteens and are not required to work outside of school hours. The ASU and UWU have not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that the Employer will not require these employees to perform overtime.
BOOT issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
Clause 24.4(b) of the Agreement requires 24 months service for employees who work an average of less than 19 hours per week to progress to the next paypoint whereas the SCHADS Award has no such requirement.
Clause 25 of the HPSS Award provides that part-time employees receive overtime when they work in excess of their ordinary hours, more than 10 hours per shift or work in excess of agreed hours unless agreement has been reached in accordance with clause 10.3. Clause 30 of the Agreement provides that overtime is payable to part time employees only when they work more than 7.6 hours on any day.
Clause 32.8 of the Agreement provides that the Employer will endeavour not to require an employee to commence work until the employee has had a break of at least 10 hours where reasonable and will pay overtime rates until the employee has had a 10 hour break. Clause 25.4 of the SCHADS Award provides that an employee will be allowed a break of not less than 10 hours between the end of one shift or period of work and the start of another.
Clause 35.1 of the Agreement provides that where an employee is required to perform a higher-level role for three or more consecutive days the employee will be paid the higher rate. Clause 30.1 of the SCHADS Award provides that a home care employee engaged in any duties carrying a higher wage rate than the classification in which they are ordinarily employed will be paid at the higher rate for two hours worked or a full shift if working more than two hours.
Clause 37.2 of the Agreement provides that to be eligible for the payment of the on-call allowance, the employee must: (a) be ready and available to return to the workplace without notice; (b) remain within 30 minutes travel time of the workplace; and (c) be contactable at all times by phone. Clause 20.11 of the SCHADS Award provides less onerous requirements in that an employee required by the employer to be on call (i.e. available for recall to duty at the employer’s or client’s premises and/or for remote work) will be paid an allowance.
Clause 15 of the Restaurant Award provides for a minimum engagement of six hours for full-time employees whereas clause 17 of the Agreement provides for a minimum engagement of three hours for full-time and part-time restaurant employees.
Clause 15.1 of the Restaurant Award provides that employees may not be rostered more than 10 hours per day for more than three consecutive days without a 48-hour break following and no more than eight days of more than 10 hours may be worked in a four-week period. The Agreement appears to be silent in relation to these safeguards.
Clause 28.1(a) of the SCHADS Award, clause 23 of the Restaurant Award, clause 23.1(a) of the Children’s Services Award, and clause 20.2(c) of the Fast Food Award provide that full-time employees will be paid overtime when working in excess of their ordinary hours of work and rostered ordinary hours, whereas clause 30.4(b) of the Agreement states that full-time employees will be paid overtime only when working outside the span of hours.
Clause 50.7 of the Agreement provides that employees may be required to take annual leave during any shutdown whereas the SCHADS Award has no such requirement.
Section 190 Undertakings
The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Appendix 6. 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The ASU and the UWU, 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 ASU and the UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2024. The nominal expiry date of the Agreement is 4 October 2028.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE526321 PR779991>
0
0
0