Yooralla
[2018] FWCA 7381
•6 DECEMBER 2018
| [2018] FWCA 7381 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Yooralla
(AG2018/6418)
YOORALLA SOCIETY OF VICTORIA ABILITY PRESS AND DUAL WARE INDUSTRIES EMPLOYEES CERTIFIED AGREEMENT 2004 Educational services | |
COMMISSIONER BISSETT | MELBOURNE, 6 DECEMBER 2018 |
Application for termination of the Yooralla Society of Victoria Ability Press and Dual Ware Industries Employees Certified Agreement 2004.
[1] The Yooralla Society of Victoria (Yooralla) has made an application to terminate the Yooralla Society of Victoria Ability Press and Dual Ware Industries Employees Certified Agreement 2004 1 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (FW Act). The application was made on 16 November 2018.
[2] The Agreement is a single enterprise agreement. It was certified by the Australian Industrial relations Commission (AIRC) on 15 November 2004 pursuant to s.170LT of the Workplace Relations Act 1996. The Agreement came into force on the day it was certified and remained in force until 14 November 2007.
[3] The FW Act relevantly states:
225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.
[4] A statutory declaration by Dr Peter O’Donoghue, Employee Relations Manager for Yooralla, was declared on 15 November 2018 was filed in support of the application.
Background
[5] Yooralla operates four Supported Employment Services (or Australian Disability Enterprises). The Supported Employment Services are services to support the paid employment of persons with disabilities (Supported Employees). The Supported Employees employed by Yooralla are covered by the Agreement. They are paid a wage assessed in accordance with a wage assessment tool.
[6] Employees covered by the expired Agreement would be covered by the Supported Employment Services Award 2010 2 (SES Award) and it would apply to their employment if I was to terminate the Agreement as sought. There is no replacement agreement in relation to the Supported Employees.
[7] No submissions other than those made by Yooralla have been made with respect to the application and there is no union party to the Agreement (it being an agreement made between the employer and employees).
Section 225
[8] The application for termination of the Agreement has been made by Yooralla, being the employer covered by the Agreement. I am therefore satisfied that the application has been properly made.
Section 226(a) – the public interest
[9] Yooralla submits that it is not contrary to the public interest to terminate the Agreement.
[10] Dr O’Donoghue, in his statutory declaration, says that there are better conditions under the SES Award than those enjoyed by the Supported Employees under the Agreement. These include:
• Improved superannuation: The SES Award provides for a special minimum superannuation contribution by an employer that, whilst paid by Yooralla, is not required under the Agreement. Coverage by the SES Award would ensure that this provision did apply.
• Paid morning tea breaks: This is currently required by the SES Award but is not a provision of the Agreement.
• Weekend penalty rates: The SES Award provides for higher rates of pay for work on Saturdays and Sundays. Whilst the Agreement allows for ordinary hours to be worked no weekend penalty rate applies.
• Enforceable right to overtime rates: The SES Award contains an enforceable right to be paid overtime rates (or agree to time in lieu). In contrast, the Agreement provides that an employee is entitled to time off in lieu although the employer may elect to make payment instead.
• Shift loadings: The SES Award provides for a shift loading of 15% for shifts finishing between 6.00pm and midnight. The Agreement provides no shift loading.
• Allowances: The SES Award provides for a range of allowances not provided for in the Agreement including vehicle, first aid, meal, laundry, special and protective clothing, toilet cleaning and leading hand allowances.
• Family and Domestic violence leave: The SES provides for leave to deal with family and domestic violence, a provision not included in the Agreement.
• Casual conversion: The SES Award contains a clear framework for when a request for casual conversion may be made. There is no right to make such a request at any time under the Agreement.
• Wage regression: The SES Award allows for wage reduction of a Supported Employee only if the reduction is due to the regression of the employee’s disability. Prior to any such reduction the employer is required to exhaust all training options and options to allocate new tasks to avoid regression. The Agreement does not require that all training or reallocation options be exhausted.
[11] Yooralla also propose to give a number of undertakings to preserve some terms and conditions of the Agreement which it says are better than those contained in the SES Award. A copy of the undertakings is attached in Annexure A. These undertakings are, in summary:
• Minimum rate of pay: any employee covered by the Agreement will not be paid less than what they would have received had the Agreement remained in force.
• Rostering and weekend work: a Supported Employee will not be rostered to work overtime without their agreement, rostered to work a shift commencing after 3.00pm without mutual agreement, or rostered or required to work on a Saturday or Sunday unless mutually agreed.
• Personal/Care’s Leave: a Supported Employee who would have been covered by the Agreement had it not been terminated and is not covered by another agreement and is entitled to paid personal/carer’s leave under the NES will continue to accrue 15 days paid personal/carer’s leave (inclusive of the NES entitlement) if a full-time employee and on a pro-rata basis if a part-time employee.
• Accident make-up pay: a Supported Employee who would have been covered by the Agreement had it not been terminated and is not covered by another agreement and is not entitled to a more beneficial accident make-up pay under an award, enterprise agreement, statute or contract will be entitled to the make-up pay which previously existed in the Agreement.
[12] Taking into account the background, the more beneficial provisions under the SES Award and the undertakings Yooralla proposes to give to maintain the more beneficial provisions, Yooralla submits that termination of the Agreement is not contrary to the public interest. In making such submissions Yooralla submits that I should also take into account the time since the Agreement expired (over 11 years) and the problematic interaction between the Agreement and the FW Act.
Section 226(b) – the appropriateness of terminating the Agreement
[13] Yooralla submits that it is appropriate to terminate the Agreement taking into account the views of Yooralla and its employees and the circumstances of Yooralla and its employees and the likely effect of the termination.
[14] In support of its submissions Dr O’Donoghue said that Yooralla supports equal access to labour rights for all workers and the termination of the Agreement will ensure that its Supported Employees will be entitled to the same safety net as other employees of the organisation and that such rights should be “clearly stated and legally enforceable”. In this respect it says that the Agreement fails as it must be read in conjunction with the hourly rates of pay in the SES Award and model clauses contained in the Fair Work Regulations 2009. Further, Dr O’Donoghue says that the preservation of special rights for supported Employees (through the proposed undertakings) will not cause any impediment to the costs or productivity of Yooralla.
[15] Dr O’Donoghue says that termination of the Agreement will enhance the ability of Yooralla to advertise itself as an employer of choice for Supported Employees. Such circumstances support its support for the termination of the Agreement.
[16] Dr O’Donoghue said that he, along with Mr Mark Caile, Employee Relations Advisor, conducted information sessions for Yooralla’s Supported Employees in October 2018. Prior to the information sessions an invitation was sent to Supported Employees and their families/carers. This material was provided in Easy English (for Supported Employees) and plain English. The material contained an invitation for parents/carer’s with questions to contact Mr Caile. Three parents took up the invitation.
[17] At the conclusions of the information sessions Dr O’Donoghue said that no Supported Employee or parent/carer expressed any opposition to the proposal or negativity towards it.
[18] Dr O’Donoghue says that the Supported Employees currently covered by the Agreement will have “tangible benefits” preserved by the proposed undertaking and will become entitled to conditions in the SES Award. He says that the circumstances of the Supported Employees will be enhanced by the termination the Agreement
[19] Dr O’Donoghue says that the only foreseeable consequence of terminating the Agreement is that the dispute settlement procedure in the Agreement is broader than that in the SES Award. He says however that, in the period of operation of the Agreement no disputes have been referred to the Commission. Further, he says that the internal process within Yooralla will not change.
Consideration
[20] I have very carefully considered the comprehensive material put to me by Yooralla and I have had particular regard to the contents of the Agreement and the contents of the SES Award which will apply to the Supported Employees should this application be granted.
[21] I am satisfied that neither Yooralla nor the Supported Employees and/or their parents/carers have expressed any opposition to the termination of the Agreement.
[22] I am satisfied that Yooralla has taken all reasonable steps to ensure that the Supported Employees and their parents/carers understood what was being proposed (termination of the Agreement, application of the SES Award and preservation of some conditions through undertakings) and that information was provided in an appropriate form. I am satisfied that Yooralla staff were available to and did respond to any queries about the proposal both at the information sessions and at other times.
[23] I am satisfied that the views of the employer and the Supported Employees are not contrary to the termination of the Agreement.
[24] Further, I am satisfied, having considered the circumstances of the employees and the employer and the likely effect of the termination of the Agreement on them that these are not contrary to the termination of the Agreement.
[25] I am also satisfied that it is not contrary to the public interest to terminate the Agreement in circumstances where Yooralla proposes undertakings to preserve some conditions of employment that are better than those contained in the SES Award.
Conclusion
[26] In the circumstances I have decided to terminate the Agreement subject to the undertakings given by Yooralla and attached to this decision.
[27] The termination of the Agreement will come into effect on Friday 14 December 2018. An Order 3 to this effect will be issued with this decision.
COMMISSIONER
<AG837487 PR702852>
1 AG837487.
2 MA000103
3 PR702941.
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