| [2016] FWC 8591 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Queensland Nurses' Union of Employees
(AG2016/3193)
Aged care industry | |
COMMISSIONER BOOTH |
BRISBANE, 2 DECEMBER 2016 |
Termination of the TriCare Residential Aged Care Facilities Enterprise Agreement 5 - Information for employees.
[1] This Statement concerns an application by Queensland Nurses’ Union of Employees for the Fair Work Commission (the Commission) to terminate the TriCare Residential Aged Care Facilities Enterprise Agreement 5 (the Agreement). The Agreement had a nominal expiry date of 18 November 2015.
Purpose of the Statement
[2] The purpose of this Statement is to provide notification and information for employees of Tricare who are covered by the TriCare Residential Aged Care Facilities Enterprise Agreement 5 and to seek the views of employees.
[3] A copy of s.226 of the Fair Work Act 2009 (the Act) is attached. This section requires that the Commission must terminate an agreement when it is satisfied that is not contrary to the public interest to do so and it is appropriate to terminate the agreement taking into account certain circumstances. These circumstances include the views of employees (including the likely effect of the termination on them).
[4] This Statement contains the views of 3 employee organisations:
The applicant- Queensland Nurses’ Union of Employees (QNU) who support the termination of the agreement; and The Australian Workers’ Union of Employees, Queensland (AWU) and United Voice (UV) - these unions do not support the application to terminate.
Queensland Nurses’ Union of Employees
[5] The QNU has applied for the termination of the Agreement because:
[6] If EA5 is terminated:
[7] UV and the AWU are concerned that the termination of the Agreement may result in TriCare reducing the annual leave accrual of some Environmental Services and Food Services staff from 5 weeks to 4 weeks. If the QNU thought there was a significant risk of that occurring, we would not be pursuing the termination of the Agreement.
[8] TriCare’s standard contracts of employment incorporate all the terms of the Agreement, including a minimum of 5 weeks leave. Those contracts, and the entitlement under them to a minimum of 5 weeks leave, will continue after the termination of the Agreement. Additionally, the Aged Care Award 2010 entitles an employee to 5 weeks annual leave if s/he is regularly rostered on nights (between 6.00 pm and 6.00 am) or works for more than four ordinary hours on 10 or more weekend days per year.
The Australian Workers’ Union of Employees, Queensland
[9] The QNU has made an application to terminate the Agreement.
[10] The AWU opposes this application.
[11] The basis for this opposition is due to the uncertainty around what would happen with some employee entitlements – namely an employee’s entitlement under the Agreement to a minimum of 5 weeks annual leave.
[12] If the Agreement is terminated, employees’ terms and conditions of employment would be covered by an Award – either the Nurses Award or the Aged Care Award. There is speculation that Personal Carers will be covered by the Nurses Award 2010. This may or may not be the outcome as TriCare has not expressed a firm view.
[13] The Aged Care Award 2010 contains an entitlement for only 4 weeks annual leave, while the Enterprise Agreement provides for a minimum of 5 weeks annual leave.
[14] Considering that TriCare has refused to maintain the entitlement to a minimum of 5 weeks annual leave, the AWU opposes the application currently before the Commission.
[15] All employees, even if not a member of the AWU, are encouraged to provide feedback to the Commission and highlight the potential detriment faced should the application to terminate the Enterprise Agreement succeed.
United Voice
[16] UV opposes the application to terminate the Agreement.
[17] The main reason for opposition is that the Agreement guarantees a minimum of 5 weeks annual leave for all employees. In certain circumstances, employees can get up to 7 weeks annual leave.
[18] If the Agreement is terminated, employees will revert to the respective “Modern Awards”. These will be either the Nurses Award 2010, or the Aged Care Award 2010, depending on your classification. There is speculation that Personal Carers will be covered by the Nurses Award 2010. This may or may not be the outcome as TriCare has not expressed a firm view.
[19] If you revert to the Aged Care Award 2010, you may only be entitled to 4 weeks annual leave. In certain circumstances you may get 5 weeks, but that is the maximum which is possible under the Aged Care Award.
[20] Despite TriCare being given the opportunity to ‘protect’ the annual leave entitlement, they have declined, putting your 5th week of annual leave at risk. Therefore, UV has no alternative but to oppose the application in order to preserve the 5th week.
What are employees asked to do?
Read the statements from the QNU, AWU and UV.
You are then invited to provide to the Commission at the email address chambers.booth.c@fwc.gov.au with your views and your circumstances including the likely effect that the termination will have on you.
If you wish to provide your views, please do so by Monday, 12 December 2016.
COMMISSIONER
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Attachment
“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.”