[2012] FWA 10543 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
SOS Nursing & Homecare Service
(AG2012/11564)
Social, community, home care and disability services | |
COMMISSIONER DEEGAN |
CANBERRA, 14 DECEMBER 2012 |
Application for approval of the SOS Home and Community Care Enterprise Agreement 2012.
[1] This is an application made by SOS Nursing and Homecare Service (SOS or the employer) pursuant to s.186 of the Fair Work Act 2009 (the Act) for the approval of the SOS Home and Community Care Enterprise Agreement 2012 (the Agreement).
[2] The application for approval was lodged on 10 October 2012.
[3] On 16 October 2012, the New South Wales Nurses and Midwives’ Association (the ‘Association’), a bargaining representative for the Agreement, lodged a Form 18 Declaration of Employee Association in relation to the Application for Approval of Enterprise Agreement. The Association did not support the approval of the Agreement on the grounds that it did not comply with the National Employment Standards (NES) and did not satisfy the Better Off Overall Test (the BOOT). The Association also took issue with a number of matters contained in the statutory declaration (Form 17) filed on behalf of SOS in support of the application for approval.
[4] On 24 October 2012, the Queensland Nurses’ Union (the ‘QNU’), also a bargaining representative for the proposed Agreement, filed a Form 18 Declaration noting that it did not support the approval of the Agreement for the same reasons as advanced by the Association. The QNU indicated that it would be represented in the approval proceedings by the Association.
[5] The application was listed for a Directions Hearing on 24 October 2012. At that hearing the parties agreed to a timetable for the filing of documents with the matter listed for hearing on 15 November 2012. The applicant did not comply with the timetable. As a consequence, a further hearing was held on 6 November 2012 and Directions issued for the filing of documents by each party with a hearing on 28 November 2012. On the same date as the Association’s application an Order for Production was issued. The applicant was ordered to produce the relevant documents on 9 November 2012, but the documents were not produced until 13 November 2012.
[6] The applicant also failed to comply with the Directions for the filing of an outline of submissions and witness statements. These were filed on 16 November 2012.
[7] The Association filed and served an outline of submissions and 4 witness statements on 22 November 2012.
[8] The hearing took place on 28 November 2012. Prior to the hearing the applicant and the Association agreed that with the excision of some paragraphs of the evidence in the statements of the other witnesses, only Ms Rosemary Hyles; a witness for the applicant, was required for cross-examination.
The Undertakings
[9] At the commencement of the hearing the applicant provided a “Schedule of Undertakings” 1 that SOS was prepared to make in relation to the Agreement. The Undertakings purported to answer concerns expressed by the Association that the Agreement was less beneficial than the Nurses Award 2010 [MA000034] (the Nurses Award) in a number of respects and that the Agreement contained contradictory provisions.
[10] The Undertakings provided for:
[11] The Undertakings also purported to remove the contradiction between clause 16(1) and Clauses 8.2 and 8.3 of the Agreement. While clause 16.1 allowed for averaging of the 38 hours per week work over 4 weeks, clauses 8.2 and 8.3 allowed for averaging over 12 weeks. The Undertaking was intended to ensure that the Agreement provided for the averaging of hours over a 12 week period.
The Better Off Overall Test (the BOOT)
[12] Section 193 of the Act provides for a non-greenfields agreement to pass the better off overall test if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
[13] The NSW Nurses and Midwives’ Association objected to the approval of the Agreement claiming that it did not meet the BOOT as certain classes or individuals within the agreement would not be better off overall when compared to the relevant industrial instrument; namely, the Nurses Award 2010.
The applicant’s position
[14] The applicant’s position was that, given the Schedule of Undertakings, the Agreement did meet the BOOT as under the Agreement :
[15] In the alternative, the applicant argued that should the Agreement be found not to meet the BOOT, it should be approved, in the public interest, pursuant to s.189 of the Act.
[16] Evidence to support the applicant’s case was contained in the statements of:
[17] Ms Slee’s statement 2, as amended by agreement between the parties, was tendered in evidence without need for cross-examination. It was the evidence of Ms Slee that:
[18] It was also Ms Slee’s evidence that the travel clause in the Agreement had the support of the majority of staff.
[19] Ms Connelly’s statement 3 was also amended by agreement between the parties and accepted into evidence without the need for cross-examination. According to the evidence of Ms Connelly, nurses working in remote areas are often happy to pick up additional non-nursing work to supplement their incomes, as isolated areas may only have a few hours of nursing work available each week. While nurses would not carry out nursing duties for less money, some were prepared to take on additional domestic work. The Agreement would permit this to occur.
[20] The statement of Ms Hyles 4 was tendered and Ms Hyles was cross-examined. Ms Hyles’ evidence outlined the role of SOS, the types of clients serviced by the organisation and the various services provided to them. Ms Hyles described the tasks generally performed by the Registered and Enrolled Nurses employed by SOS and those performed by the Community Care employees. Her evidence also dealt with the work performed by the clerical and administrative staff and Home and Garden care employees.
[21] Ms Hyles’ evidence included a spreadsheet 5 containing a comparison of pay rates under the Agreement and under the relevant awards. It was her evidence that the pay rate for a Community Carer Grade 2 under the Agreement was up to 14.34% higher than the highest pay rate for an Assistant in Nursing under the Nurses Award and 2% higher than the highest classification rate for a Home Care Employee Level 3 Pay point 2 within the Social, Community, Home Care and Disability Services Award 2010 [M000100] (the Social Award).
[22] Ms Hyles acknowledged that the payment under the Agreement for use of an employee’s private vehicle was 40 cents per kilometre, while under the relevant awards it was 74 cents per kilometre. According to Ms Hyles, this lower payment was offset by the fact that under the Agreement the employees would be compensated for kilometres travelled from their homes to their first appointment, an amount she claimed was not payable under the award. Ms Hyles also claimed in her statement that the employees would be paid travel time and kilometres for “the trip to and from work where the journey exceeds 50 kilometres” 6
[23] A table set out at paragraph 43 of Ms Hyles’ statement showed a sample of the effect of the changes to travel payments on a sample number of employees. That table showed that in the chosen sample, four of the five employee required to use their own cars would have been worse off had the Agreement provisions applied. One employee would have been better off.
[24] It was Ms Hyles’ evidence that the Agreement, which contained the changed travel allowances, was supported by 95% of SOS staff in the ballot. A survey conducted prior to the Agreement being put to ballot was also included in Ms Hyles evidence.
[25] So far as voluntary supplementary work at a lower grade was concerned, it was Ms Hyles’ evidence that it was supported by a large percentage of SOS employees in the survey conducted during bargaining. That survey also dealt with the matters of minimum hours of engagement and split shifts. Ms Hyles claimed that a question seeking a preference between a minimum engagement of 1 hour and no minimum engagement received 61% support for no minimum length of engagement. It was noted that funding was usually allocated for periods of care for clients between 30 minutes and two hours per fortnight, with one and a half hours the usual period. According to Ms Hyles some nursing procedures required only a 15 minute attendance and there might not be other work available for an employee at that time. It was also noted that a showering service was allocated only 30 minutes. Ms Hyles claimed that if a two hour minimum period of engagement (as set by the Nurses Award) were to apply, the service would not be viable and up to 50 % of casuals would lose their jobs.
[26] The applicant sought to tender a supplementary statement of Ms Hyles. That statement was filed late on 27 November 2012 and was said to address discrete issues in the Association’s evidence. The Association objected to the tender of the statement noting that it did not seem to deal with matters contained in the statements of its witnesses. The applicant’s representative withdrew the application to tender the supplementary statement.
[27] Under cross-examination, Ms Hyles agreed that although her statement claimed at paragraph 41 that employees would be “paid both travel time and kilometres for the trip to and from work where the journey to work exceeds 50 kilometres”, clause 11.2 reads, “A travel allowance of 40 cents per kilometre shall be paid for authorised use of an employee’s private vehicle between leaving home for work and their last client”. She conceded that the Agreement did not provide for payment as claimed in paragraph 41.
[28] Ms Hyles also conceded that the table in paragraph 43 of her statement showed that only one employee was better off under the travel arrangements provided in the Agreement and all other employees were either neutral, because they were provided with a car, or would be worse off under the Agreement. Ms Hyles also agreed that it was the SOS interpretation of the relevant award that employees were not entitled to be paid the vehicle allowance from their home to their first client or from their last client to their home. She conceded that the kilometres travelled by employees could change from week to week.
[29] Ms Hyles was cross-examined about the Guidelines issued by the Department of Veterans’ Affairs (DVA) which applied to a number of SOS clients. She agreed that compliance with the guidelines was mandatory to receive DVA funding. The witness also agreed that there was the ability to seek funding for the payment of additional travel kilometres from DVA.
[30] It was put to the witness that the current agreement applying to SOS contained a classification of Health Care Worker Level 3 which contained a reference to an Assistant in Nursing (AIN). Ms Hyles agreed that SOS employees were currently employed under that classification. It was noted that the July 2012 pay records that had been put in evidence did not include that classification. Ms Hyles denied that the AIN rates had disappeared from the current agreement but noted that a different classification had been adopted in the proposed Agreement. She agreed that SOS had “relabeled people as personal carers rather than assistants in nursing”. 7
[31] Ms Hyles was unable to respond to a suggestion put by Mr Blair that the rates adopted for the comparison table included at attachment RH-2 of her statement included an error. Based on a publication of the Fair Work Ombudsman 8 and a document entitled “Nurse Working in Medical Centres, Community or Other Services”9 it was put that the correct transitional casual rate for the Nursing Assistant Year 3 under the relevant award was $22.87 per hour rather than $21.87 as claimed by Ms Hyles.
[32] It was the evidence of Ms Hyles that under the Agreement, employees who travelled to an SOS office to pick up a car in order to then visit clients were paid travelling time for all time between leaving the office and returning to it. When asked to identify the Agreement clause that covered this situation she was unable to do so.
[33] Ms Hyles accepted that it was the position of the Association that employees who were directed to travel between places for their employment should be paid from the time that they leave their home. She denied that the Association’s position reflected the award provisions.
[34] Ms Hyles agreed that she was a Registered Nurse (RN) and that RNs had to satisfy a number of national competency standards and requirements to be registered with the Australian Health Practitioners Registration Agency. She also agreed that RNs completed the care plans for certificate III employees to follow in the care of SOS DVA clients. She further agreed that the certificate III employees had to comply with the RN’s directions. The witness also conceded that DVA requires particular qualifications and competencies for those that provide services to veterans. The Guidelines stated that care providers “must ensure that all community nursing services delivered by enrolled nurses and nursing support staff are planned, delegated, supervised and documented by a registered nurse” 10. She noted, however, that the requirement did not “work in practicality because there is no – in a rural and remote area where we work we do not have direct supervision of our staff”11. Further she claimed that RNs “do not have any direct control over the provision of services that they write a care plan for. What happens is they go and do an assessment, they write a care plan, then they will do a visit, usually once every 28-day period, with the veteran to decide whether the care plan is accurate or needs any adjustment, and if so they will write that on the care plan. You direct people to perform work under the care plan but then you don’t do any supervision of it afterwards DVA is quite well aware of that because they know there are not enough registered nurses in the community and, therefore, we have to travel long distances to provide the supervision of the clients.”12
[35] It was put to the witness that personal care duties typically included tasks such as toileting, showering and medication prompting, not usually tasks such as cleaning or shopping. Ms Hyles disagreed. When taken to the statement of Ms Gill, which contained at page 353 a definition of personal care, Ms Hyles claimed that there was a broad range of other things that constituted personal care other than those listed in the definition.
[36] The witness denied that it was SOS practice to use ENs for duties which would normally be ancillary to the work of an EN but would pay them as a lower grade community carer. When given an example of such an employee she claimed that the employee concerned did very little EN work. She agreed that the duties of carers and ENs could overlap but stated that what determined the payment was the level of care allowed by DVA who would not pay for an EN to perform personal care work. If the work had not been done as supplementary work on a voluntary basis by the particular EN it would be given to a Certificate III employee.
[37] Ms Hyles was shown a government atlas 13 of New South Wales which classified areas on the basis of estimated resident populations. She agreed that the majority of areas serviced by SOS were not classified as remote under the atlas. Ms Hyles also conceded that a list14 of DVA providers in the New England area showed that SOS was one of a few such providers.
[38] When re-examined, Ms Hyles stated that the table produced at paragraph 43 of her statement was only a sample of a particular fortnight and that the figures in that table could change from fortnight to fortnight. It was possible that in a different fortnight the employees concerned could be better off.
The position of the Association
[39] The statements of four witnesses were relied upon by the Association. The witnesses were not required for cross-examination. Some parts of the witness statements as filed were excised by agreement between the parties prior to the statements being accepted into evidence.
[40] The evidence of Ms Annie Butler; RN and Organiser with the Association, dealt with her qualifications to provide evidence concerning the National Competencies for Registered Nurses and related matters. Ms Butler took issue with matters raised by the witnesses for the applicant, insofar as the evidence concerned the concepts of direction and supervision by RNs in accordance with the professional practice framework for those positions. According to Ms Butler, the applicant’s witnesses either did not understand or ignored the supervisory requirements for professional nurses and nursing practice. In essence Ms Butler’s evidence was that while an RN should prepare care plans and properly delegate the performance of those plans, the RN is required to professionally supervise and direct the nursing support staff carrying out those plans.
[41] According to the statement of Ms Butler, Enrolled Nurses performing supplementary work in a Community Care Grade 2 position would still be held accountable as a professionally registered nurse for her work as an Enrolled Nurse. Finally Ms Butler took issue with Ms Hyles’s claim that there is limited work for nurses in rural areas, She claimed that there is a shortage of nurses in rural areas and noted that the Murrumbidgee Local Health District had 88 vacancies at the time she made her statement and that almost three quarters of those vacancies were nursing and midwifery positions.
[42] Ms Gillian Russell is an Assistant in Nursing (AIN), employed by SOS since 2002. In her statement 15 she noted that DVA clients make up most of her work and that she cares for those clients in accordance with a care plan devised and reviewed by an RN. She noted that the clients were reviewed by the RN weekly, fortnightly or monthly, depending on the client and claimed to be the “eyes and the ears’ of the RN when she is not there. According to Ms Russell her job consisted mostly of personal care with some domestic work and that this had not change during her period of employment with SOS.
[43] It was Ms Russell’s evidence that travel is a fundamental part of her work and with no fixed place of work she travels between her home and her clients’ homes. Often she returns to her home between clients, performing a morning, afternoon and evening “run”. She noted that she is currently not paid for her travel time between clients, or normally, for her travel to and from her home to her clients.
[44] Ms Kim Gordon had been employed by SOS since 2002 performing domestic duties and since 2009 as an AIN. In her statement 16 she noted that she performed her work in accordance with a care plan prepared by an RN. Her duties were generally of a personal care nature, including showering, toileting and medication prompting. Her duties did not include tasks of an administrative nature.
[45] It was Ms Gordon’s evidence that travel is a fundamental part of her work with SOS. Her evidence, concerning the type of travel undertaken and payment for it, was the same as that of Ms Russell. Ms Gordon noted that while she was not travelling much at present due to health issues, she had in the past travelled up to 500kms per week.
[46] Ms Carolyn Gill; Assistant Industrial Officer with the Association, tendered a number of documents with her witness statement 17, including the relevant awards, documents produced by SOS (including a job description and informative material), an extract of an affidavit tendered in other court proceedings by the General Manager of SOS, a taxation ruling on travelling expenses and a statement of claim and defence filed in the Federal Magistrates’ Court in a matter involving SOS and the Association. Timesheets and payroll data in relation to Ms Kathleen Murphy; an employee of SOS, were also attached.
[47] Ms Gill also filed a supplementary statement 18 detailing quotes she had been given for comprehensive car insurance together with the costs of obtaining greenslips for employees of the type generally employed by SOS.
The Submissions
The applicant
[48] It was put by the applicant that the BOOT was an analysis of each and every clause in the agreement and whether or not those clauses were either advantageous or disadvantageous when compared to the relevant award. It was noted that the relevant awards for the administrative staff, Registered and Enrolled Nurses, and the home care and gardening staff were not in dispute. The dispute between SOS and the Association is whether the 59 community carers are covered by the Nurses Award 2010 [MA000034] or the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100].
[49] The SOS position is that under the coverage clause of the Nurses Award a person can only be classified as an Assistant in Nursing if that person falls within the definition at Classification B1 in the Schedule, which provides:
‘Nursing assistant means an employee, other than one registered with the Nursing Board or its successor or one who is in training for the purpose of such registration who is under the direct control and supervision of a registered or enrolled nurse and whose employment is solely to assist an RN or an EN in the provision of nursing care to persons.’
[50] It was put by SOS that based on the evidence of Rosemary Hyles, the 59 community care workers are not under the direct control and supervision of a registered or enrolled nurse and the performance of their duties is better classified under the definitions contained in the Social Award, particularly given the indicative duties of the Level 3 Home Care Employees in that award. It was also noted that the hourly rate of pay for Home Care Employees at the level utilised in the Agreement is superior to that of AINs; a significant fact given the question is whether or not the Agreement meets the BOOT.
[51] A table supplied by SOS 19compared the earnings of employees under the Agreement as against the Social Award. It was noted that the Table provided showed a range of difference, from being better off by 60.95% to being worse off by 2 percent. The employee found to be worse off was only rendered so due to the travel component of the payments. It was put that this amount would differ from week to week depending on the kilometres travelled.
[52] The representative for SOS explained that the original comparison Table presented by the employer (which was superseded by Exhibit SOS3) was inaccurate, as it included payment for travelling time under the Award, an amount claimed by SOS not to be an Award entitlement.
[53] It was the contention of SOS that the Agreement does meet the BOOT but, in the alternative, should the Agreement be found not to meet the BOOT, the Agreement should be approved, in the public interest, pursuant to s189 of the Act. It was argued that there are exceptional circumstances that apply to the operation of the business, including the type of care provided by SOS and the fact that the care is being provided strictly in accordance with government funding. SOS is providing a community service based around the provision of funding which has strict ties to it, such as the qualifications of the persons who are able to provide that care, and the locations of the clients to whom that care is provided. It was contended that the regions in which many SOS clients are located can be considered remote. It was the evidence of Ms Hyles that the majority of SOS clients are based around western and north-western areas of New South Wales and a minority are on the central coast.
[54] Finally it was argued that the type of operation conducted by SOS and the type of care provided under the restrictions that apply to the provision of that care, constitutes an exceptional circumstance, and therefore, it is in the public interest that the Agreement be approved so that those clients from the Department of Veterans Affairs can continue to be provided with the care they currently receive.
The Association’s Submissions
[55] The Association noted that the relevant classification and award for the application of the BOOT was a threshold matter. It was seeking a finding on those matters.
[56] One area of dispute was the appropriate classification (RN2 or RN3) for the classification of Registered Nurse Manager. The association put that a Registered Nurse Manager should be classified as a RN3 rather than an RN2.
[57] So far as the Community Care classifications were concerned the Association was not disputing the appropriateness of the Community Care Grade 1. It was the Grade 2 level that the association believed should be classified as an AIN under the Nurses Award. The Grade 1 classification related to those employees engaged mostly in domestic work and cleaning, and those employees were not to be compared with nurses. The Grade 2 employee was principally dealing with personal care. It was the Association’s position that if such employees were “principally” engaged in nursing duties than they fell under the Nurses Award.
[58] The Association relied on historical material to show that employees principally employed in nursing duties have flowed into the Nurses Award. It was noted that the awards that have covered nurses have always covered community nurses, and encompassed direction by an RN at a distance. The Association also relied on documents which showed that SOS has historically classified these employees as AINs. It was put that SOS was attempting a “complete re-badging” of people, despite the organisation promulgating information on its website and in advertisements concerning ‘community nursing’ and ‘nursing models of care’.
[59] It was put that the application of the Nurses Award for the purposes of the BOOT was significant, as that award had superior conditions, including penalty rates on Saturdays of 50 per cent and 75 per cent on Sundays for casual workers; and a two hour minimum shift length, five weeks' annual leave and an afternoon shift penalty of 12 and a half per cent, all of which were not found in the Social Award.
[60] According to the Association, Community Care Grade 2 employees should be compared with assistants in nursing given their duties ( personal care, service and respite) and
accountability, authority, supervision and qualifications. It was argued that their duties do not include meal preparation, client transport, shopping or other domestic duties of the type found in the description of the Grade 1. It was for this reason that the Association claimed that they are principally in nursing related work.
[61] The Association conceded that the Nurses Award refers to workers employed "solely to assist an RN or EN" but claimed that the coverage clause of that Award expands on that definition so that if the employee is “principally engaged to do that work”, then they are nurses for the purposes of the coverage arrangement.
[62] The Association relied on the DVA Guidelines to show that that personal care is completely within the nursing services:
“A DVA-contracted community nursing provider will classify an entitled person into the personal care type of service when personal care is the majority of care requirement for community nursing services.” 20
[63] It was submitted by the Association that a tax ruling 21 tendered in evidence provided an appropriate test for an “itinerant worker”. It was noted that travel is a fundamental part of the work of the SOS employees under examination. Clearly if you had a fixed place of work you would not be paid for travel to and from the workplace, but it is a different matter where your place of work moves around. SOS required its employees to use their own cars for SOS business. Employees were directed to drive their cars to clients’ homes so that they could then travel on to the next client and so on.
[64] The Association argued that SOS could not claim that the reduction of the 75 cents per kilometres travel allowance to a 40 cent per kilometre allowance was offset by SOS paying employees for travel time from home to clients and between clients. It was the Association position that under the relevant awards the travel time was payable.
[65] Examples were given in the Association’s evidence which showed that the employees would, on their usual travel patterns, be better off under the Award than the Agreement, and this was the case even if the SOS position on the payment of travel time under the Award was adopted.
[66] It was also argued by the Association that the fact that employees might be able to claim against their income tax for the expenses involved in travelling to perform their duties was of little help to those SOS employee who did not earn sufficient income to pass the tax free threshold. Documents were tendered in evidence to support the claim that some SOS employees earned less than that threshold amount.
[67] The association relied on the following comment made in a case involving the same parties concerning payment of travel time under a State Award:
“Finally, the proposition that the notional agreement should be interpreted so that the employees are not paid for periods of time when they are performing duties for the employer, is surprising and not likely to be embraced in the absence of clarity of expression which the notional agreement clearly lacks.” 22
[68] The case of Ms Murphy, who had travelled 1200 kilometres under the current agreement but had not been paid any travel time was noted.
[69] The Association also reiterated the earlier claim that SOS had used the wrong transitional hourly rates when comparing the Agreement against the award. It was also put that employees were disadvantaged in that shift allowances were not paid under the Agreement but were applicable under the award.
[70] Further, it was put that the Agreement requires employees to keep their vehicles comprehensively insured and that this was a significant cost to the employee. According to the Association, on the evidence of Ms Gill, for an employee working 20 hours per week over 47 weeks (allowing for annual leave), the cost of comprehensive (non-compulsory) car insurance was 48 cents per hour.
[71] In response to the SOS submission that the Agreement should be approved in the public interest should it not pass the BOOT, the Association argued that SOS is a for-profit company. While it is a company funded mostly from government sources, no evidence was provided to support a claim that the government does not adequately fund the service. SOS did not supply any financial evidence to support the argument that it could not afford additional labour costs or any evidence that if SOS discontinued the service there was no other provider who would perform the service. There was evidence, however, that other providers operated in the same regions as SOS and many of the areas were not remote. It was argued that the Agreement should not be approved pursuant of s.189 of the Act solely on the basis that SOS provided a useful service.
The applicant in response
[72] SOS disputed the Association’s interpretation of the coverage provisions of the Nurses Award, arguing that the classifications listed in schedule B of that Award do not include a neat fit for the home care workers covered by the Agreement. The employees did follow the care plan prepared by an RN but that is just one of the tasks they perform and the rest of the tasks that they perform mean they cannot meet the requirements of the definition of "nursing assistant." Therefore, the definition of home care employee in the Social Award is the far more appropriate definition.
[73] SOS also noted that under the Agreement, employees would be paid travel time, but not for travelling to and from the first and last client, except where that first client is more than 50 kilometres from their home. SOS maintained that payment for travel time is a benefit because the relevant awards do not specify such payment and therefore that payment is a trade-off for the reduction in the cents per kilometre allowance paid under the Agreement.
[74] So far as the Association’s claim that the matter of comprehensive car insurance should be taken into account when applying the BOOT was concerned, SOS relied on the decision in Top End Consulting Pty Ltd re: Top End Consulting Enterprise Agreement 2010 23, where Bartel DP made the following statement:
“[27] There is nothing in section 193 to suggest that the BOOT is to be assessed by matters extraneous to the terms and conditions of the relevant instruments. The test requires that the status of the employees as better off overall or otherwise is to be assessed on the basis of the application of each instrument to the employee and not to the intentions of the parties as to working arrangements which may flow from those terms”. 24
Consideration
The Undertakings
[75] The Undertakings that the employer is prepared to make are generally directed at remedying deficiencies in the Agreement terms so far as they deal with matters covered in the NES. These are uncontroversial and given that the NES will apply, despite any lesser provision contained in the Agreement 25, are acceptable.
[76] Number 3 in the Schedule of Undertakings is as follows:
“That clause 16 of the Agreement be read so that the average hours of work will be determined over a 12 week period.” 26
[77] I am not prepared to accept this undertaking which is designed to remove a contradiction in the provisions of clause 16 and clause 8.2 of the Agreement. Clause 16 of the Agreement currently provides for the averaging of work hours over 4 weeks. It is my view that clause 16 as it currently stands is in more favourable terms from the point of view of the employee and I will not accept an alteration to the Agreement by way of undertaking that lessens the benefit of the Agreement to employees covered by it. I would have accepted an undertaking that removed the contradictory provisions by bringing the provisions of clause 8.2 into line with those of clause 16.
[78] I raised this matter with the employer’s representative at the commencement of the hearing but no change was offered in relation to the terms of the undertaking.
The BOOT
[79] The majority of the hearing of this matter concerned the appropriate award against which to apply the BOOT for those employees described in the Agreement as Community Care Workers Grade 2. The Association maintains these employees are equivalent to AINs under the Nurses Award. The employer claims they are equivalent to Home Care Employees Grade 2 in the Social Award.
[80] It is my view that, in the circumstances of this case, I do not need to make a definitive decision as to which is the applicable award. The rates under the Nurses Award are not sufficiently different to those payable under the classification claimed by the employer. In any event the rates under the Nurses Award are not higher. I note the Association’s claim that the Nurses Award has more beneficial conditions, including an additional week’s annual leave and some shift penalties. These matters may have been important had I not decided that, whichever award is applicable to these particular employees, the Agreement does not pass the BOOT.
[81] I have determined that the Agreement does not pass the BOOT on the basis of the following findings.
[82] I accept the Association’s claim and find that the employer has used the wrong transitional rate for the purposes of comparison of the Agreement to the award.
[83] I find that on the basis of the classification descriptors contained in the Nurses Award the Nurse Manager classification in the Agreement is more correctly classified at the RN Level 3.
[84] I do not accept the argument of the employer that the fact that the Agreement requires the employees to keep their private vehicles comprehensively insured is not a matter to be taken into account for the BOOT. Any obligation or cost imposed by the Agreement, which is either not imposed by the relevant award or is a lesser amount under that award, is an appropriate consideration for the BOOT. In order to determine whether an employee would be better off overall under the relevant award or the proposed agreement, the benefits and costs granted or imposed under each instrument must be weighed up and an overall “balance” reached. There is no logic to the employer’s apparent argument that, as the award does not deal with the question of comprehensive insurance, then it is not a matter for the BOOT. According to the employer, the award does not provide travel time, but I am to take that matter into account as a benefit of the Agreement when applying the BOOT. I find that the requirement that the employees keep their private vehicles comprehensively insured is a provision of the Agreement which is less beneficial when measured against the requirements of the relevant award.
[85] So far as the matter of payment of travel time under the award is concerned, I am not in a position, on the limited argument before me, to make such a determination. In my view it is unnecessary that I do so as I am satisfied on the evidence put forward by the employer that despite travel time being paid under the Agreement, employees with particular travel patterns would be worse off under the Agreement than under the award. The Association’s evidence confirmed that finding. To reduce the cents per kilometre allowance payable under the relevant awards from 75 to 40 cents will have a major effect on the payments made to an employee travelling large numbers of kilometres, particularly given that there are no minimum shift lengths required under the Agreement.
[86] It is arguable, under the Nurses Award that an employee required by SOS to visit a client’s home using the employee’s private vehicle, is entitled to be paid for the time taken in travel. The employer concedes that an employee using a company vehicle is entitled to be paid for all travelling time when directed to work away from the office, but distinguishes this from the situation when the employee uses their own vehicle and leaves, not from the office but from their home.
[87] I am not prepared to decide the question of the payment of travel time under the Nurses Award on the meagre evidence and submissions before me in this matter. It is not unnecessary for me to decide the point. In any event, as I have found that even if the employer argument about travel time under the award is correct, the Agreement does not pass the BOOT.
Approval pursuant to s.189
[88] The employer has submitted that if I find that the Agreement does not pass the BOOT then I should approve it nevertheless, pursuant of s.189 of the Act.
[89] S. 189 of the Act provides as follows:
“189 FWA may approve an enterprise agreement that does not pass better off overall test—public interest test
Application of this section
(1) This section applies if:
(a) FWA is not required to approve an enterprise agreement under section 186; and
(b) the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.
Approval of agreement if not contrary to the public interest
(2) FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
(3) An example of a case in which FWA may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.
Nominal expiry date
(4) The nominal expiry date of an enterprise agreement approved by FWA under this section is the earlier of the following:
(a) the date specified in the agreement as the nominal expiry date of the agreement;
(b) 2 years after the day on which FWA approved the agreement.”
[90] Very little was put by the employer in support of this claim. In essence it was argued that, given the vital work carried out by SOS employees in remote and rural areas, it was in the public interest for the Agreement to be approved. No financial evidence of the type that might support an argument such as is envisaged by s.189(3) was tendered.
[91] While I accept that SOS employees perform a valuable service, I note that SOS is a company set up to make a profit. It is not a charitable institution. Ms Hyles’s evidence contained nothing upon which I could base a finding that exceptional circumstances exist which would justify SOS employees being subjected to an Agreement which is less beneficial than the applicable awards.
[92] As so little evidence was offered in support of this proposal, I can only assume that it was not seriously put by the employer.
Conclusion
[93] As noted, I refuse to approve the proposed Agreement as it does not pass the BOOT as required by s.186 of the Act. I also refuse to approve the Agreement pursuant to s.189 of the Act as I am not satisfied that exceptional circumstances exist which would render the approval of the Agreement not contrary to the public interest.
[94] I will allow the employer seven days from the date of this decision to offer any further undertakings which it may wish to make, directed towards enabling the Agreement to pass the BOOT. In order to pass the BOOT, it is likely that an undertaking which provides a significant increase in the rate of the travelling allowance will be necessary.
[95] In conclusion, I should note that I am very concerned that, in answer to Question 3.6 of the Form 17 Employer’s Declaration lodged in support of the Agreement, the employer stated that the only less beneficial term of the Agreement, when measured against the relevant awards, was that “All parties agreed to a minimum of 1 hour” (it is assumed that this refers to the minimum shift length). In the Form 18 filed by the Association more than twenty less beneficial clauses in the Agreement were identified. While some of these were open to argument, many were accepted and addressed in the undertakings provided by the employer.
In my view more care should have been taken by the employer to ensure that the statements made in the Form 17, which is a statutory declaration, were accurate. I am not persuaded that the employer was unaware of the other less beneficial provisions of the Agreement. If in fact the employer was not aware of those other provisions then real doubt must attach to the manner in which the Agreement was explained to the employees.
Appearances:
Mr C Blair, Industrial Officer, NSW Nurses’ Association & Australian Nursing Federation
Ms A Deboos, Solicitor for the applicant
Hearing details:
2012
SYDNEY
28 November
1 Exhibit SOS1
2 Exhibit SOS4
3 Exhibit SOS5
4 Exhibit SOS6
5 Exhibit SOS6 Attachment RH-2
6 Exhibit SOS6 Paragraph 41.
7 Transcript PN 282
8 Exhibit B1 FWO Pay and Conditions Guide
9 Exhibit B2
10 Transcript PN 354,355
11 Transcript PN 355
12 Transcript PN 385-387
13 Exhibit B3
14 Exhibit B4
15 Exhibit B6
16 Exhibit B7
17 Exhibit B8
18 Exhibit B9
19 Exhibit SOS3
20 Transcript PN 730
21 Annexure M to Exhibit B8
22 Perram J
24 Top End Consulting
25 S. Fair Work Act 2009
26 Exhibit SOS1
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