[2017] FWCA 2009 DECISION Fair Work Act 2009 s.185 Enterprise agreement Estia Investments Pty Ltd T/A Estia Health (AG2016/8092) ESTIA HEALTH NSW ENTERPRISE AGREEMENT 2016 Health and welfare services COMMISSIONER GREGORY MELBOURNE, 7 APRIL 2017 Application for approval of the Estia Health NSW Enterprise Agreement 2016. [1] An application has been made for approval of an enterprise Agreement known as the Estia Health NSW Enterprise Agreement 2016 ( the Agreement ). It is made under s.185 of the Fair Work Act 2009 (Cth) ( the Act ) by Estia Investments Pty Ltd T/A Estia Health ( Estia Health ) and is a single enterprise Agreement. [2] The application and the form F17 Employer s Statutory Declaration are accompanied by various attachments, including attachment L, which contains a detailed comparison of the terms in the proposed Agreement and those contained in the underlying Awards, and identifies those provisions in the Agreement that can be said to be more or less beneficial when compared with the relevant Award provisions. [3] After reviewing the application and the Employer s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought clarification about a range of matters. Estia Health subsequently provided responses in regard to these matters, together with a series of proposed undertakings. However, the matter was also set down for hearing to enable further submissions to be provided in support of the application. [4] Ms Jessica Fisher from FCB Workplace Law was given permission to appear on behalf of the Estia Health under s.596(2)(a) as the matter involves a degree of complexity and her involvement might enable it to be dealt with more effectively. She appeared with Mr Ricky Ison, the Head of Human Resources and Employee Relations at Estia Health. Ms Raphaelle Kennedy appeared on behalf of the New South Wales Nurses and Midwives Association and the New South Wales Branch of the Australian Nursing and Midwifery Federation, together with Mr Toby Warnes from the Health Services Union of Australia. Both organisations are bargaining representatives and both have provided Form F18 Statutory Declarations indicating support for the Agreement being approved by the Commission. The hearing was conducted by telephone. 1
[2017] FWCA 2009 [5] The Commission raised the following matters in the hearing. Training the Commission made reference to the provisions contained in the Agreement at sub clauses 17.3 and 17.4, which provide that in some circumstances training can be carried out outside of normal work hours, and in those circumstances the hours will be compensated at the ordinary time rates of pay. Estia Health indicated in response that on average employees undergo around 10 hours of training each year. It also indicated that it is only on very rare occasions that there is any requirement for this training to be carried out outside of normal work hours. Part-time work the Commission noted at the outset that the Employer s Statutory Declaration indicates that a substantial proportion of the employees covered by the proposed Agreement are engaged on a part-time basis. It also noted that the relevant provisions in the Agreement in clause 11 require that part-time work arrangements be agreed in advance and in writing. The Commission also sought further details about the circumstances in which part-time employees might be required to work additional hours over and above those agreed. Estia Health submits, in response that part-time employees are only required to work additional hours in a limited range of circumstances, and it did not believe that the provisions in the Agreement raise any issues in terms of satisfaction with the requirements of the better off overall test. The Nurses and Midwives Association also noted that the provisions in the Agreement are generally consistent with those contained in the Nurses Award 2010. Allowances the Commission next noted that the Agreement does not contain the Leading Hand and Sleepover allowances that are provided for in the Modern Award. Estia Health indicated in response that the undertakings proposed include an undertaking that it does not and will not operate Sleepover arrangements. It has also proposed an undertaking which would introduce a scale of Leading Hand allowances. Annualised salaries the Commission noted the provisions contained in clause 9.7 of the Agreement, which define the employees who can be employed on an annualised salary basis. It also noted the provisions contained in clause 30.2, which indicate that various provisions in the Agreement have no application to those employees. Estia Health also indicated that there are approximately 80 employees who could be engaged under these arrangements. They are typically more senior employees in management positions, who generally work on Monday Friday during the hours of 9 a.m. to 5 p.m. It submits that because they receive a salary that is at least 15% above the rates in the Agreement, which are already significantly in excess of the Modern Award rates, there are no issues about satisfaction with the requirement of the better off overall test. However, it has also proposed an undertaking in regard to these employees, which would require it to review these annual salary arrangements each year. The undertaking would also enable an employee covered by these arrangements to request an annual reconciliation against the relevant Award provisions. [6] Estia Health also submits that in terms of satisfaction with the requirements of the better off overall test the employees covered by the terms and contained in the proposed Agreement generally receive rates of pay that are around 20 % more than those contained in the relevant Awards. In its submission these rates and the other more beneficial provisions in 2
[2017] FWCA 2009 the Agreement mean that the Commission can be satisfied the Agreement meets the requirements of the better off overall test. [7] As indicated, Estia Health has provided various written undertakings. A copy of those undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. [8] Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. [9] The New South Wales Nurses and Midwives Association, the Australian Nursing and Midwifery Federation (New South Wales Branch) and the Health Services Union, New South Wales Branch, each being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they want to be covered by the Agreement. I note in accordance with s.201(2) that the Agreement covers each of these organisations. [10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 April 2017. The nominal expiry date of the Agreement is 30 January 2020. COMMISSIONER Appearances: J Fisher and R Ison for the Applicant. R Kennedy for the New South Wales Nurses and Midwives Association and the Australian Nursing and Midwifery Federation (New South Wales Branch). T Warnes for the Health Services Union of Australia. Hearing details: 2017. Melbourne (via telephone): April 7. 3
[2017] FWCA 2009 Annexure A 4
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[2017] FWCA 2009 Printed by authority of the Commonwealth Government Printer <Price code J, AE423967 PR591728> 6