DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Epic Employment Service Inc. T/A Epic Assist
(AG2019/2840)

EPIC EMPLOYMENT SERVICE INC ENTERPRISE AGREEMENT 2018

Application for approval of the EPIC Employment Service Inc Enterprise Agreement 2018.

[1] Epic Employment Service Inc. trading as Epic Assist has applied for approval of a single enterprise agreement known as the EPIC Employment Service Inc Enterprise Agreement 2018 (the Agreement). The Australian Municipal, Administrative, Clerical and Services Union was a bargaining representative for the Agreement.

[2] One of the matters about which I must be satisfied in order to approve the Agreement is that it does not contravene section 55 by excluding the National Employment Standards, either in whole or in part. 1 The Standards provide for a range of paid leave and holiday entitlements, including annual leave (section 87), personal/carers’ leave (section 96), compassionate leave (section 106) and public holidays (section 116). Except in prescribed circumstances, the cashing out of annual leave (section 94) and personal/carer’s leave (section 100) is prohibited.

[3] In Canavan Building Pty Ltd 2 a Full Bench of the Commission held that if an enterprise agreement term has the effect that employees do not receive some or all of a benefit provided by the Standards, the term excludes the Standards in a way that is contrary to section 55.

[4] Clause 10.4(b) of the Agreement provides for the payment of a 25% loading in lieu of an entitlement to paid leave and public holidays for part-time employees as follows:

“By mutual agreement between the Employer and Employee, a part-time employee may be paid a loading of 25% on their hourly rate and not have an entitlement to paid leave or payment for public holidays except for their accrued long service leave. Such agreement will not alter the employee’s status as a part-time employee.”

[5] The term reflects an equivalent term in clause 10.3(d) of the Labour Market Assistance Industry Award 2010, which provides as follows:

“By mutual agreement between the employer and employee, a part-time employee may be paid a loading of 25% on their hourly rate and not have an entitlement to annual leave, personal/carers’ leave or payment for public holidays. Such agreement will not alter the employee’s status as a part-time employee.”

[6] The effect of clause 10.4(b) of the Agreement is that part-time employees can elect to forgo their entitlement to paid leave and paid public holidays in return for a loaded hourly rate of pay. The value of the loading is more than the value of the leave and holiday entitlements it is intended to displace. As it results in some or all of the benefit provided by the Standards not being provided to relevant employees, clause 10.4 excludes each of the Standards identified in paragraph [2] at least in part.

[7] Epic Assist has given a written undertaking to address the concern. A copy of the undertaking is at Annexure A.

[8] The scope of the undertaking is narrow and will not result in substantial changes to the Agreement. However, I am concerned that the effect of accepting the undertaking is likely to cause financial detriment to employees engaged under the arrangements contemplated in clause 10.4(b) of the Agreement. There are only two such employees and their preference is to continue receiving a higher hourly rate of pay in lieu of leave and holiday entitlements under the Agreement. Such an outcome presents the obvious difficulty that it would render the Agreement incapable of approval.

[9] Instead, the employees have agreed with Epic Assist to vary their contracts of employment in a bid to overcome likely financial detriment caused by the undertaking in each case. However, I am not presently satisfied these arrangements have the desired effect because one consequence is that the employees will no longer have guaranteed hours of work.

[10] Except in relation to clause 10.4(b), 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.

[11] Epic Assist has 7 days to provide any further undertaking or other materials in support of the application. Bargaining representatives are to provide any views on the further undertakings or materials filed within 7 days of receipt. Unless either party seeks that the matter be listed for hearing within those timeframes, the application will then be determined.

COMMISSIONER

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Annexure A

 1   Fair Work Act 2009, s.186(2).

 2   [2014] FWCFB 3202.