s.185 - Application for approval of a single-enterprise agreement

KIRINARI COMMUNITY SERVICES LTD ENTERPRISE AGREEMENT 2024

Social, community home care and disability services

Application for approval of the Kirinari Community Services Ltd Enterprise Agreement 2024

• [1] Kirinari Community Services Ltd (Kirinari) has made an application for approval of an enterprise agreement known as the Kirinari Community Services Ltd Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

• [2] The Agreement will apply to employees who are covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

• [3] The following background information is derived from a witness statement provided by Ms Michelle Gonzalez, Workforce Manager, Recruitment and Retention at Kirinari, dated 17 February 2025.

• [4] Kirinari is a not-for-profit organisation which provides human services including social and community services, crisis accommodation and home care to approximately 3,961 vulnerable customers across regional and remote communities.

• [5] Kirinari currently employs 1,328 employees and operates in the following regional and

(a) Albury-Wodonga;

(b) Murrumbidgee;

(c) Nepean Blue Mountains;

(d) Hunter New England;

(e) Northern NSW;

(f) Western NSW;

(g) Toowoomba;

(h) Fraser Coast; and

(i) North Queensland including Bundaberg.

• [6] In addition, Kirinari also operates in the Adelaide metropolitan area in South Australia as well as Hobart, Launceston and surrounding suburbs in Tasmania.

• [7] From 2006, Kirinari's operations were mainly covered by the following agreements:

(a) Kirinari Community Services Limited Enterprise Agreement 2006-2009 - Northern New South Wales Branch (Northern NSW Agreement)

(b) Kirinari Community Services Ltd Hume Riverina Branch Certified Agreement 2006-2008 (Hume Riverina Agreement)

(c) Kirinari Community Services Limited Enterprise Agreement 2006-2009 - Blue Mountains and Riverina Branches (excluding Albury) (Blue Mountains Agreement)

• [8] These three agreements were agreement-based transitional instruments to which item 20A of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) applied, also known as 'Zombie Agreements'.

• [9] The parties bound by the Hume Riverina Agreement are Kirinari and the Health Services Union of Australia (HSU). The parties bound by the Blue Mountains Agreement and the Northern NSW Agreement are Kirinari and the Australian Municipal, Administrative, Clerical and Services Union (ASU).

• [10] The Hume Riverina Agreement was extended on two occasions pursuant to subitem 20A(6) of Sch 3 of the Transitional Act and is subject to a third extension application which was made by Kirinari on 19 November 2024. The third extension application has not yet been determined so the Hume Riverina Agreement continues to operate pursuant to subitem 20A(11) of Sch 3 of the Transitional Act.

• [11] In considering the initial extension application, the Full Bench concluded that, as at the time the application was made, employees under the Hume Riverina Agreement, viewed as a group, would not be better off if the Hume Riverina Agreement applied to them than if the Award applied.[1] However, the Full Bench concluded that it would be 'reasonable in the circumstances' to extend the default period, taking into account a number of matters including the intention of all parties to negotiate a single consolidated agreement to cover employees in New South Wales and Victoria, that bargaining for a new agreement will commence before 6 December 2023 and that bargaining was likely to be logistically and industrially complex.[2]

• [12] Kirinari subsequently applied to extend the Blue Mountains Agreement and the Northern NSW Agreement.[3] These applications were refused by the Full Bench who found that any disadvantage experienced by Kirinari in relation to organising rosters and administering payroll if the agreements were not extended was outweighed by the financial disadvantage that employees would continue to experience while covered by the agreements.[4] The Blue Mountains Agreement and the Northern NSW Agreement terminated on 6 December 2023.

• [13] Bargaining for a new agreement commenced on 31 January 2024 with the ASU and the HSU. A vote took place over the period 9 December 2024 to 11 December 2024 resulting in an 84% vote in favour of the Agreement. On 20 December 2024, Kirinari made an application to the Commission for approval of the Agreement.

• [14] The HSU filed a Form F18 in which it indicated that it supported approval of the Agreement by the Commission. The HSU did not express a view about whether the Agreement passes the better off overall test (BOOT). The ASU filed a Form F18 in which it indicated that it does not support approval of the Agreement because the Agreement does not pass the BOOT.

• [15] On 16 January 2025, the Agreement approval application was allocated to my Chambers. On 17 January 2025, I raised a number of issues about the Agreement with the parties by email, including in relation to the BOOT. On 24 January 2025, Ms Athena Koelmeyer, Managing Director and Principal of Workplace Law, sent a response on behalf of Kirinari which addressed some of the issues raised and provided proposed undertakings. As the Agreement when considered with the proposed undertaking did not appear to pass the BOOT, I made directions for the filing and serving of material by the parties and listed the matter for hearing on 11 February 2025. By consent of the parties, the hearing was adjourned to 18 February 2025. At the conclusion of the hearing, I invited Kirinari to provide further undertakings and submissions which it did on 25 February 2025.

• [16] The terms of the Agreement are less favourable than the Award in the following respects:

1. Maximum daily hours: Clause 25.1 of the Award provides that the ordinary hours of work can be worked as 8 hours or by agreement, the ordinary hours may be worked up to 10 hours per shift. Clause 27 of the Agreement states that the maximum shift length for all employees is 12 hours. This presents as an issue where employees who work in excess of 8 or 10 hours would otherwise be entitled to overtime under the Award.

1. Shift penalties: Afternoon shift is defined in both the Award and the Agreement as any shift which finishes after 8.00 pm and at or before 12 midnight Monday to Friday. Night shift is defined in both the Award and the Agreement as any shift which finishes after 12 midnight or commences before 6.00 am Monday to Friday. The Award makes provision for a 12.5% loading for afternoon shift allowance and a 15% loading for night shift, which are both payable for the entirety of the shift. However, clause 32(a) of the Agreement states that an afternoon shift and night shift will be paid at ordinary rates until 6.00pm, with the shift penalty rate applying only after 6.00pm.

1. Broken shifts: Clause 25.6 of the Award provides that an employee required to work a broken shift must be paid the allowance. Clause 27.7 of the Agreement does not provide for a broken shift allowance for employees who work a broken shift. Kirinari has advised the Commission that employees will perform broken shifts under the Agreement.

1. Pay Rates: The Agreement applies to employees who are classified as Social and community services employees, Crisis accommodation employees and Home care employees (disability care) who are all paid at the same rate of pay as provided by the Award. The Agreement also applies to Home care employees (aged care) who are paid 0.03% - 7.13% above the Award, with the exception of the Level 1 - 4.1 classifications which are paid 1.44% - 4.39% below the Award. Kirinari has provided an undertaking in relation to the rates of pay for Home care employees (aged care) Level 1 - 4.1 classifications.

• [17] Kirinari submits that consistent with the requirements of subsection 193A(2), taking a global assessment, the Agreement passes the BOOT because the Agreement contains the following more beneficial terms:

(i) Clause 27.8(d) of the Agreement provides for a sleepover allowance of $80.00 to be paid on each occasion an employee is required to perform a sleepover. This allowance also compensates for 30 minutes of disturbance time, if there is any such disturbance time. Under the Award, currently an allowance of $57.99 is payable. Kirinari submits that this is a more beneficial monetary entitlement, with employees receiving at least $22.01 more on each occasion they are rostered to perform a sleepover.

(ii) Clause 35.1 of the Agreement provides that full-time day workers and shift workers will accrue five (5) weeks of annual leave each year (with part-time day workers and shift workers entitled to accrue pro-rata leave entitlements). Kirinari submits that this is more beneficial than the entitlement of four (4) weeks annual leave under the National Employment Standards (NES) for day workers.

(i) Direct Support Workers (other than shift workers) will be paid an annual leave loading of 17.5% of their ordinary rate of pay.

(ii) Direct Support Workers who are shift workers will be paid the higher of:

i. An annual leave loading of 17.5% of their ordinary rate of pay;

ii. The weekend and shift penalties they would have received had they not been on leave during the period.

(iv) Clause 36 of the Agreement provides that Direct Support Workers with more than 3 years of service will be entitled to a greater entitlement to personal/carer's leave as follows:

(i) Employees with between 3 years of service and 5 years of service will accrue 12 days of personal/carer's leave per annum

(ii) Employees with 5 years of service or more will accrue 13 days of personal/carer's leave per annum.

(v) Under clause 17.1(a) of the Agreement, each part-time employee will be employed for a minimum of 8 hours per fortnight.

(vi) Under clause 23.8 of the Agreement, an employee who is required to work outside the region in which they are employed to work will be paid an additional allowance which is equivalent to the difference in travel time between working in the region and the travel time to the location of the work required outside the region.

• [18] Kirinari submitted that while casual employees do not receive the beneficial leave entitlements under the Agreement that permanent employees will receive, Kirinari has committed to prioritising the employment of and rostering of permanent employees over casual employees. Further, Kirinari is also committed to taking all reasonable steps for casual employees to achieve secure direct and permanent employment.

• [19] In relation to Maximum Daily Hours, Kirinari submitted:

1. The HSU's log of claims included a claim for 12-hour shifts as members expressed a desire to have the ability to work longer hours over a shorter period of time.
2. Kirinari agreed to have maximum shift lengths of 12 hours as it also allowed for flexibility in rostering.
3. Kirinari also agreed that where an employee works a 12 ordinary hour shift, any overtime worked will be paid at the rate of 200% (with the higher overtime rate of 250% paid for overtime performed on Sundays).
4. If the Agreement is not approved, Kirinari will roster shift lengths in accordance with the Award. The modelling prepared by Kirinari indicates that employees will be earning less money as they will be rostered to perform 8 hours of work per shift. For employees who are currently rostered to perform 12 hours of work per shift as permitted under the Hume Riverina Agreement, they will earn less money as a result of being rostered for less hours if the Agreement is not approved.

• [20] In relation to Shift Penalties, Kirinari submitted as follows:

1. Kirinari has provided an undertaking proposing that shift penalties will also be paid to all employees either working day work or shift work from 6pm until the end of the shift.
2. As a NDIS provider, Kirinari is required to roster employees in a way that achieves efficiency and is cost-effective use of the funding customers receive. Should the proposed Agreement not be approved, Kirinari will be required to roster in the most cost-effective way possible under the Award. The modelling prepared by Kirinari, indicates that employees will be earning less money under the Award compared to the Agreement.

• [21] In relation to Broken Shifts, Kirinari submitted as follows:

1. Broken shifts were discussed during the negotiation for the Agreement. Employee bargaining representatives felt strongly that broken shifts were something that they wished to retain in the Agreement as they provided flexibility and greater opportunities to perform additional hours of work while balancing other commitments.

1. If the Agreement is not approved, Kirinari will be required to roster in the most cost-effective way possible under the Award. The modelling prepared by Kirinari, indicates that employees will be earning less money under the Award compared to the Agreement.

• [22] Kirinari submitted that it is reliant on funding provided by the National Disability Insurance Scheme (NDIS). The NDIS provides funding for supports and services for participants. The NDIS expects providers to roster efficiently to ensure that the participants receive the maximum hours of care and support participants require and that they receive value for money. As a result, providers, including Kirinari, are required to roster as efficiently as possible to ensure that participants receive support, and unnecessary costs (such as overtime) are minimised.

• [23] Kirinari submitted that if the Agreement is not approved, Kirinari will roster employees to ensure that customers receive value for money for their supports. In practice, this will require

(a) avoiding overtime costs under the Award (i.e. rostering up to 10 hour shifts only);

(b) minimising penalty rates; and

(c) avoiding broken shift penalties.

• [24] Where an application for approval of an enterprise agreement is made under s.185 of the Act, s.186(1) requires that the Commission approve the agreement if the requirements set in ss.186 and 187 are met. Section 186(2)(d) requires the Commission to be satisfied that the agreement passes the BOOT.

• [25] The BOOT which is the subject of the approval requirement in s 186(2)(d) is explained in s.193(1) as follows:

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that:

(a) each award covered employee, and each reasonably foreseeable 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; and

(b) if the agreement is a single‑enterprise agreement that covers one or more employees (each of whom is an old agreement employee) to whom a supported bargaining agreement or a single interest employer agreement applies - each old agreement employee would be better off overall if the single‑enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

Note 1: Reasonably foreseeable employee is defined in subsection (5).

Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

• [26] Section 193(5) defines 'reasonably foreseeable employee'. It provides:

(5) A reasonably foreseeable employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(b) would be covered by a modern award (the relevant modern award) that:

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

• [27] Section 193A sets out the requirements for applying the BOOT. It provides:

(1) This section applies for the purposes of determining whether an enterprise agreement passes the better off overall test under section 193.

(2) To avoid doubt, the FWC must undertake a global assessment of whether each employee concerned would be better off having regard to:

(a) the terms of the agreement which would be more beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee; and

(b) the terms of the agreement which would be less beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

(3) The FWC must give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by any of the following:

(a) the employer or employers that are covered by the agreement;

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - those employees;

(c) in any case - a bargaining representative for the agreement.

(4) The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:

(a) the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;

(b) the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation);

(d) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation).

(5) Subsection (4) does not apply if the agreement is a greenfields agreement.

(6) The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.

(6A) The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

(a) the employer or employers that are covered by the agreement;

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - those employees;

(c) in any case - a bargaining representative for the agreement.

(7) If a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

Terms of the Agreement which are more beneficial than the Award

• [28] I deal first with the conditions in the Agreement which are more beneficial than the Award.

• [29] Under clause 27.8 of the Agreement, an employee is entitled to a sleepover allowance of $80.00 for each night on which they perform a sleepover, which includes payment for 30 minutes of disturbance time. The sleepover allowance under the Award is $57.99. If the employee is not disturbed during a sleepover, the employee receives a higher payment under the Agreement compared to the Award. However, if the employees are disturbed during a sleepover, they will receive a higher payment under the Award compared to the Agreement. In this regard, clause 25.7(e) of the Award provides that if an employee is required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work. Therefore, the Sleepover Allowance is more favourable under the Agreement compared to the award if there are no disturbances and more favourable under the Award compared to the Agreement if there are disturbances.

• [30] The Award provides that employees will receive the annual NES entitlement of four weeks unless the employee is a shift worker, in which case they will receive five weeks. The definition of 'shift worker' in the Award includes an employee who works for more than 4 ordinary hours on 10 or more weekends during the yearly period in respect of which their annual leave accrues. This definition appears to apply to Kirinari's employees. Therefore, the five-week annual leave entitlement (plus leave loading) is more favourable under the Agreement compared to the Award for non-shiftworkers, however the entitlement is the same for shift workers.

• [31] The Agreement provides more generous personal/carer's leave entitlements than the Award for employees with more than three years service. Employees with less than three years service receive the same personal/carer's leave entitlements under the Award and the Agreement.

• [32] The minimum hours provision under clause 17.1(a) of the Agreement for part-time employees applies to part time employees only.

• [33] The additional allowance under clause 23.8 is payable only to an employee who is required to work outside the region in which they are employed to work.

Terms of Agreement which are less beneficial than the Award

• [34] I now consider the conditions in the Agreement which are less beneficial than the Award.

• [35] Employees who perform a shift which is longer than eight hours (or ten hours by agreement) receive overtime rates under the Award for that portion of the shift which is longer than eight or ten hours. However, under the Agreement, such employees will receive ordinary rates only for shifts up to 12 hours.

• [36] Employees who commence an afternoon or night shift before 6pm will receive the applicable penalty rate for the duration of their shift under the Award. However, under the Agreement, such employees will only receive shift penalties from 6pm.

• [37] Employees who work a broken shift receive a broken shift allowance under the Award but not the Agreement.

• [38] Ms Gonzalez gave evidence at the proceedings and attached around 21 indicative fortnightly rosters to her witness statement which she said were reasonably foreseeable patterns of work and showed that employees are better off overall under the Agreement compared to the Award. No other person has expressed a view about whether a particular pattern of work, is, or is not, or is reasonably foreseeable. I have had regard to all of these rosters in my consideration of that matter but by way of example, I have referred below to the amounts payable under the Agreement compared to the Award in five of the rosters provided by Ms Gonzalez.

• [39] Example Roster 2 of Annexure G of Ms Gonzalez's statement showed that the employee would be better off by $13.93 per fortnight under the Agreement compared to the Award. However, the calculations incorporated a new shift penalty which is not in the Agreement but contained in a proposed undertaking. If the calculations containing the new shift penalty are removed, the employee is better off by only $0.25 per fortnight.

• [40] Example Roster 3 at Annexure G of Ms Gonzalez's statement showed an employee working night shifts, broken shifts and sleepovers. They were $60.24 per fortnight better off under the Agreement compared to the Award because the reduced night shift penalty and no broken shift allowance were offset by the higher sleepover allowance.

• [41] Example Roster 7 at Annexure H of Ms Gonzalez's statement showed an employee working night shifts, broken shifts and sleepovers. They were $3.15 per fortnight better off under the Agreement compared to the Award because the reduced night shift penalty and no broken shift allowance were offset by the higher sleepover allowance.

• [42] Example Roster 6 of Annexure I of Ms Gonzalez's statement showed an employee working ordinary hours on weekdays, as well as weekends. According to the roster, they were $18.24 per fortnight better off under the Agreement compared to the Award because a new shift penalty which is not in the Agreement, but which is contained in a proposed undertaking was included in the calculations. Without this new shift penalty, the employee would be receiving the same amount under the Agreement and the Award.

• [43] Example Roster 7 of Annexure I of Ms Gonzalez's statement showed that an employee who worked sleepovers, night shifts and broken shifts would be $65.91 worse off under the Agreement compared to the Award.

• [44] Section 193A(6) requires that I only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, I am required to have regard to the nature of the enterprise or enterprises to which the agreement relates, which in this case, is the disability services sector.

• [45] I am required by s.193A(6A) to determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of 193A(6) if a view is expressed by Kirinari, a bargaining representative or the award covered employees for the Agreement that it is, or is not, reasonably foreseeable.

• [46] As Ms Gonzalez's evidence was not disputed during the hearing, I accept that the patterns of work in the rosters provided are reasonably foreseeable. However, I note that clause 27.6(e) of the Agreement provides that rosters may be changed. Further, during the hearing, Ms Koelmeyer explained on behalf of Kirinari that the rosters provided are the 'most foreseeable' but that emergency situations could result in other patterns of work.

• [47] I am required by s.193A(7) of the Act to give consideration to the views expressed by Kirinari, the HSU, the ASU, any other bargaining representatives and the employees about whether the Agreement passes the BOOT. Views have only been expressed by Kirinari and the ASU. The HSU supports approval of the Agreement but has not provided a view about whether it passes the BOOT. Kirinari has expressed the view that the Agreement passes the BOOT, whereas the ASU has expressed the view that the Agreement does not pass the BOOT. I have given consideration to these views.

• [48] I am required by s.193A(8) to give consideration to any common view relating to whether the agreement passes the better off overall test expressed by Kirinari, the HSU and the ASU, however there is no common view about this matter.

• [49] As is clear from the above analysis, the enhanced leave, part time minimum hours and additional travel allowance do not apply to all employees and therefore cannot be used to determine whether each award covered employee, and each reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the Award applied to the employee.

• [50] Given that employees are paid the same rates as Award covered employees, the BOOT may not be satisfied in relation to any employee who does not benefit from the terms of Agreement which are more beneficial than the Award and who works:

• a shift longer than 10 hours; or
• an afternoon or night shift commencing before 6pm; or
• a broken shift.

• [51] The rosters provided by Ms Gonzalez show that if a person is rostered on sleepovers, they may be better off overall depending upon the extent to which they also perform shifts which attract more favourable conditions under the Award compared to the Agreement.

• [52] However, the rosters provided by Ms Gonzalez do not contemplate a person being disturbed while on a sleepover. If an employee is disturbed during a sleepover, it is unlikely that the employee would be better off overall under the Agreement compared to the Award.

• [53] Further, I note that Example Rosters 6 and 7 of Annexure I show that an employee who consistently works such rosters is not better off overall under the Agreement compared to the Award.

• [54] Kirinari submitted that if the Agreement is not approved, Kirinari will roster employees

with a view to avoiding overtime costs under the Award, minimising penalty rates and avoiding broken shift penalties. These are matters which are not relevant to my assessment of the BOOT.

• [55] Taking all of these matters into account, I am not satisfied that each award covered employee, and each reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the Award applied to the employee

• [56] Section 190 provides that if the Commission has a concern that an agreement does not meet the requirements set out in ss.186 and 187, the Commission may approve the agreement if it is satisfied that an undertaking accepted by the FWC under subsection 190(3) of this section meets the concern.

• [57] Following the hearing, Kirinari proposed the following undertakings to address issues raised during the hearing:

1. All home care employees will be paid the Award rate of pay.
2. Shift penalties will also be paid to all employees working day work or shift work where work is performed after 6pm. Shift workers will be paid the ordinary base rate of pay without any shift penalty until 6pm, with the shift penalty rate applying after 6pm to the end of the shift.
3. Ordinary hour shifts of 12 hours will only be rostered by agreement between Kirinari and the employee.
4. For sleepover shifts where a disturbance is recorded, Kirinari will conduct a reconciliation of such shifts to ensure that Employees are paid at least what they would have earned under the Award for the sleepover shift. Reconciliations will be conducted at the end of each pay cycle. Any payment due to an Employee as the result of the reconciliation will be paid within 14 days of the reconciliation.
5. The casual loading will be 25.1% of the minimum hourly rate, or 0.1% above the casual loading under the Award (whichever is the greater).

• [58] The undertaking at 1 addresses the concern that the rates for some home care employees are lower in the Agreement compared to the Award.

• [59] The undertaking at 5 appears to address the concern that casual employees are not better off under the Agreement compared to the Award (provided they are not performing shiftwork).

• [60] The undertaking at 3 addresses the concern that employees may be required to work shifts of 12 hours under the Agreement in contrast to eight hours under the Award. However, the undertaking at 3 does not address the concern that employees who perform a shift which is longer than eight hours (or ten hours by agreement) receive overtime rates under the Award for that portion of the shift which is longer than eight or ten hours but will only receive overtime rates under the Agreement for shifts more than 12 hours. I note that some employees who are covered by the Hume Riverina Agreement work 12-hour shifts and may have a preference for such shifts. In the circumstances, an undertaking in relation to this matter may be acceptable if the 12-hour shift is rostered at the request of the employee and is confined to the area covered by the Hume Riverina Agreement.

• [61] The undertaking provided at 4 addresses the concern that the rosters provided by Ms Gonzalez do not contemplate a person being disturbed while on a sleepover.

• [62] The undertaking provided at 2 is somewhat unusual as it introduces an entitlement which is not provided for in the Award. It does not directly address the concern raised about employees being worse off under the Agreement if they work a broken shift or an afternoon or night shift commencing before 6pm. I therefore have doubts about whether 2 could be regarded as an undertaking which 'meets the concern' under s.190(3).

• [63] The undertakings do not address the fact that Example Rosters 6 and 7 of Annexure I show that an employee who consistently works such rosters is not better off overall under the Agreement compared to the Award.

• [64] The undertakings do not address the concern raised about employees being worse off under the Agreement if they work a broken shift or an afternoon or night shift commencing before 6pm. These employees will only be better off overall under the Agreement if they are regularly rostered to perform sleepovers which compensate them for lower penalty rates and allowances. The rosters provided by Kirinari show that employees do not always perform sleepovers. Further, I note that although Kirinari has provided rosters which show the most reasonably foreseeable patterns of work, it is possible that other rosters will need to be implemented during the life of the Agreement to meet the needs of the participants that Kirinari supports, having regard to the provisions of the Award that permit the roster to be changed. On this basis and given that the difference between the remuneration payable to employees under the Agreement compared to the Award in some of the rosters provided by Kirinari is very small, I find that it is reasonably foreseeable that employees will be rostered on shifts that contain insufficient sleepovers to compensate them for reduced penalties and allowances.

• [65] Taking all of these matters into account, I am not satisfied that the undertakings offered by Kirinari meet the concern that the Agreement does not satisfy the requirements set out in s.186(2)(d).

• [66] Pursuant to s.186(2)(d), I am not satisfied that the Agreement passes the BOOT. I have considered whether the concerns I have raised with Kirinari can be addressed by undertakings under s.190. I am not satisfied that the undertakings offered by Kirinari meet all of the concerns. It follows that I am not able to approve the Agreement under s.186. It is therefore unnecessary for me to consider whether the other requirements in s.186 and 187 are met. I dismiss the application.

Ms A. Koelmeyer, legal representative for the Applicant

[1] Application by Health Services Union [2023] FWCFB 158, [32].

[3] Application by Kirinari [2023] FWCFB 210

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