Amana Living Incorporated T/A Amana Living [2019] FWC 5713

1 Fair Work Act 2009 s.185—Enterprise agreement Amana Living Incorporated T/A Amana Living (AG2018/7372) AMANA LIVING HOME CARE STAFF ENTERPRISE AGREEMENT 2018 Social, community, home care and disability services COMMISSIONER MCKINNON MELBOURNE, 16 AUGUST 2019 Application for approval of enterprise agreement – whether employees better off overall – classification dispute – undertakings. [1] Application has been made for approval of a single enterprise agreement known as the Amana Living Home Care Staff Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Amana Living Incorporated (Amana). [2] United Voice was a bargaining representative for the Agreement. [3] Concerns were raised with Amana in relation to whether the Agreement was genuinely agreed and whether the Agreement passes the better off overall test, having regard to terms of the Agreement dealing with trainee terms and conditions of employment, Sunday penalty rates, 24 hour care and sleepovers as well as excursions when compared to the terms of the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHCADS Award). [4] Amana provided its response to those concerns, together with additional information about the agreement-making process and the explanation provided to employees. United Voice did not cavil with Amana’s submission that the Agreement was genuinely agreed. It did, however, express concern about whether the Agreement passed the better off overall test and proposed revised undertakings from Amana. [5] The majority of the concerns identified have been resolved by the giving of undertakings. However, there remains a dispute between Amana and United Voice about whether the Agreement passes the better off overall test in relation to employees who perform work on Sunday. Central to the dispute is the appropriate award classification to be used as a comparator for Community Support Worker (CSW) employees in Categories 2 and 3 under the Agreement. [2019] FWC 5713 DECISION -- 1 of 8 -- [2019] FWC 5713 2 [6] The application was heard on 17 June 2019 and further submissions were received from the parties after the hearing. This decision determines the classification dispute and provides a final opportunity to Amana for undertakings to address concerns in relation to the better off overall test. The classification dispute [7] Amana says a CSW Category 2 employee under the Agreement is comparable to a Home Care Level 2 employee under the SCHCADS Award. United Voice says the comparable award classification is Home Care Level 3 employee. [8] Amana says a CSW Category 3 employee under the Agreement is comparable to a Home Care Level 3 employee under the SCHCADS Award. United Voice says the comparable award classification is Home Care Level 4 employee. CSW Category 2 employee [9] The Agreement defines a CSW Category 2 employee as follows: “Community Support Worker (“CSW”) Category 2 means an Employee who is not required to be registered pursuant to the Health Practitioner Regulation National Law (WA) Act 2010 and whose principal duties include assisting older people with personal care and with the activities of daily living, including transportation, domestic tasks and social needs; and whose principal duties involve provision of therapeutic activities for older people, including:- a. provision of mobility and exercise programs for residents under the supervision of a Physiotherapist or Occupational Therapist; and/or b. planning, implementation, assessment and review of therapeutic activities programs which assist clients to express their lifestyle preferences and meets their particular physical, mental and social needs.” [10] The SCHCADS Award defines Home Care Level 2 as follows: “E.2 Home care employee level 2 A position in this level has the following characteristics: E.2.1 Accountability and extent of authority An employee in this level performs broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures. May assist others in the supervision of work of the same or lower level and is responsible for assuring the quality of work performed. E.2.2 Judgment and decision-making In these positions, the nature of the work is clearly defined with established procedures well understood or clearly documented. Employees in this level are called upon to use -- 2 of 8 -- [2019] FWC 5713 3 some originality in approach with solutions usually attributable to application of previously encountered procedures and practices. E.2.3 Specialist knowledge and skills Indicative but not exclusive tasks include: the provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, make beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, fitting and changing of catheters, assistance with communication, accompanying clients on outings, domestics assistance and organising appointments. E.2.4 Interpersonal skills Positions in this level require oral communication skills and where appropriate written skills, with clients, members of the public and other employees. E.2.5 Qualifications and experience As a minimum an employee in this level will have satisfactorily completed the requirements of level 1 or equivalent. Indicative but not exclusive of the qualifications required in this level include Home Care Certificate or equivalent; or relevant experience/on-the-job training commensurate with the requirements of work in this level.” [11] The SCHCADS Award defines Home Care Level 3 as follows: “E.3 Home care employee level 3 A position in this level has the following characteristics: E.3.1 Accountability and extent of authority Employees perform work under general supervision. Employees in this level have contact with the public or other employees which involves explanations of specific procedures and practices. Employees in this level are accountable for the quality, quantity and timeliness of their own work in so far as available resources permit, and for the care of assets entrusted to them. E.3.2 Judgment and decision-making These positions require personal judgment. The nature of work is usually specialised with procedures well understood and clearly documented. The particular tasks to be performed will involve selection from a range of techniques, systems, equipment, methods or processes. E.3.3 Specialist knowledge and skills Indicative but not exclusive tasks include: computer and other office skills; maintain mail register and records; sort, process and record invoices and correspondence; -- 3 of 8 -- [2019] FWC 5713 4 prepare meals and special functions; provide input into meal planning; order foodstuffs and commodities; liaise with dieticians on special needs; schedule work programs on a routine and regular basis; co-ordinate and direct the work of support staff including maintenance (no more than four); oversee the provision of domestic services; provide personal care to clients with particular emphasis on those requiring extra help due to specific physical problems or frailty; schedule maintenance work programs on a routine and regular basis; plan, develop, and co-ordinate diversional therapy programs and carry out general maintenance falling within the scope of trades skills. E.3.4 Interpersonal skills Positions in this level require skills in oral and written communication with clients, other employees and members of the public. E.3.5 Qualifications and experience Indicative but not exclusive of the qualifications required in this level is an accredited qualification to the position at the level of Certificate 3 and/or knowledge and skills gained through on-the-job training commensurate with the requirements of the work in this level.” [12] There are a number of relevant substantive differences in the classifications of Home Care Level 2 and Level 3 employee under the SCHCADS Award. Home Care Level 2 employees work within clearly defined and established procedures, while Home Care Level 3 employees perform more specialised work, selecting from a range of techniques, systems, equipment, methods and processes. Indicative tasks for Home Care Level 2 employees include personal care, housekeeping and preparation of meals, gardening and basic home maintenance, arranging client appointments and accompanying them on outings. Indicative tasks for a Home Care Level 3 employee include administrative and basic financial work, meal preparation, planning and ordering, overseeing domestic service provision, personal care for clients with “particular emphasis on” clients with specific physical problems or frailty and importantly, the planning, development and coordination of diversional therapy programs. [13] Home Care Level 2 employees must have the ability to communicate orally, and where appropriate in writing, with members of the public, clients and other employees. Home Care Level 3 employees must have both the ability to communicate orally and in writing. Home Care Level 2 employees must have at least 12 months experience in the industry, because they would otherwise be classified as Level 1 employees. Relevant experience would encompass “semi-skilled” housekeeping and home maintenance work as well as care of pets and pot plants. They may be required to hold a Home Care Certificate. A Home Care Level 3 employee may be required to hold a Certificate 3 qualification and/or have had sufficient on-the-job training that they hold the requisite knowledge and skills to undertake tasks attributable to Level 3. [14] CSW Category 2 employees are distinguished from what I understand to be health practitioners regulated by the Health Practitioner Regulation National Law (WA) Act 2010 (covering a range of health professions from dentistry to psychology). Their principal duties include: -- 4 of 8 -- [2019] FWC 5713 5 1. Assisting older people with personal care and daily living activities; and 2. Provision of therapeutic activities including mobility and exercise programs (under supervision of a health practitioner) and/or planning, implementation, assessment and review of therapeutic activities programs. [15] In my view, the second of these “principal” and seemingly mandatory duties is of particular significance. It aligns with the indicative tasks of planning and development of diversional therapy programs applicable to Home Care Level 3, but not Home Care Level 2, employees under the SCHCADS Award. For that reason, and read in the context of the classification descriptions as a whole, I consider that the better off overall test should be assessed on the basis that a CSW Category 2 employee is comparable Home Care Level 3 employee under the SCHCADS Award. CSW Category 3 employee [16] The Agreement defines a CSW Category 3 employee as follows: “Community Support Worker (“CSW”) Category 3 means an Employee who:- a. has two or more years of relevant experience as a Community Support Worker; and b. performs the duties of a Community Support Worker Category 2; and c. has successfully completed a formal qualification that is approved in accordance with the Australian National Training Framework and is recognised by the Employer as a relevant qualification for the position; and d. continues to demonstrate satisfactory work performance at an advanced level; and e. provides guidance and mentoring to less experienced Community Support Workers; and f. is appointed as a Community Support Worker Category 3.” [17] The definition of Home Care Level 3 employee in the SCHCADS Award is set out at paragraph [11] above. The SCHCADS Award defines Home Care Level 4 employee as follows: “E.4 Home care employee level 4 A position in this level has the following characteristics: E.4.1 Accountability and extent of authority Employees are expected to exercise discretion within standard practices and processes, undertaking and implementing quality control measures. Positions in this level may provide direction, leadership, administration and rostering of direct care employees. E.4.2 Judgment and decision-making The objectives of the work are well defined but the particular method, process of equipment to be used must be selected from a range of available alternatives. For -- 5 of 8 -- [2019] FWC 5713 6 employees undertaking rostering duties, the process often requires the quantification of the amount of resources needed to meet those objectives. E.4.3 Specialist knowledge and skills (a) Employees will be required to plan, direct and train subordinate staff. Employees are also required to have a thorough understanding of the relevant technology, procedures and processes used within their operating unit. (b) Indicative but not exclusive of the skills required include: the manipulation of data e.g. modify fields of information and create spreadsheets; create new forms of files or records using a computer based records system; access and extract information from external sources e.g. local authorities; roster staff and direct work programs; oversee the work and training of lower level employees; provide guidance and counselling; assist in the development of budgets; order consumables and routine stock items used in domestic support areas; develop client care plans and oversee the provision of domestic services. E.4.4 Interpersonal skills Positions in this level require the ability to gain co-operation and assistance from members of the public and other employees in the performance of well defined activities. Employees in this level may also be expected to write reports in their field of expertise. E.4.5 Qualifications and experience An employee in this level will have satisfactorily completed the requirements of level 3 or equivalent as well as have relevant experience.” [18] As can be seen from the respective definitions, Home Care Level 3 employees perform specialised work, selecting from a range of techniques, systems, equipment, methods and processes. Similar choice of method, process or equipment applies to Home Care Level 4 employees, who are also expected to exercise discretion within standard practices and processes and to undertake and implement quality control measures. In addition, they may provide direction, leadership, administration and rostering of direct care employees (including quantification of resources needed to meet rostering objectives). [19] Indicative tasks for Home Care Level 3 employee include administrative and basic financial work, meal preparation, planning and ordering, overseeing domestic service provision, personal care for clients with “particular emphasis on” clients with specific physical problems or frailty and the planning, development and coordination of diversional therapy programs. Home Care Level 4 employees are required to plan, direct and train subordinate staff and to have a thorough understanding of the technology, procedures and processes used within their unit. Indicative skills for Home Care Level 4 employees include manipulation of data, rostering staff and directing work programs, overseeing work and training of lower level employees, providing guidance and counselling, assisting in development of budgets, ordering, developing client care plans and overseeing the provision of domestic services. -- 6 of 8 -- [2019] FWC 5713 7 [20] Home Care Level 3 employees must have both the ability to communicate orally and in writing. Home Care Level 4 employees must, in addition, have the ability to gain cooperation and assistance from others in the performance of their duties. They may be expected to write reports in their field of expertise. A Home Care Level 3 employee may be required to hold a Certificate 3 qualification and/or have had sufficient on-the-job training that they hold the requisite knowledge and skills to undertake tasks attributable to Level 3. A Home Care Level 4 employee will have satisfactorily completed at least a Certificate 3 qualification and will have relevant experience. [21] Under the Agreement, CSW Category 3 employees have two or more years of relevant experience as a Community Support Worker, and perform the duties of a CSW Category 2 employee. Those include the principal duties (described above) of assisting older people with personal care and daily living activities and providing therapeutic activities. They must have successfully completed a formal qualification approved by the Australian National Training Framework which is “recognised by the Employer as a relevant qualification for the position”. While the precise qualification is not specified in the Agreement, submissions from Amana indicate that it means a “Certificate 3 or higher” qualification. [22] In my view, the role of a Home Care Level 4 employee under the SCHCADS Award is more senior in nature than that of a CSW Category 3 employee under the Agreement. CSW Category 3 employees are not required to undertake the range of supervisory and related functions contemplated for Home Care Level 4 employees under the Agreement. CSW Category 3 employees are required to provide personal care to clients, while Home Care Level 4 employees appear to be involved more in the management and training of personal care workers in a way that constitutes more than simply guidance and mentoring. The provision of personal care is not expressly contemplated for Home Care Level 4 employees, although it may be ancillary to the management and training function. The better off overall test will be assessed on the basis that a CSW Category 3 employee is also comparable to a Home Care Level 3 employee under the SCHCADS Award. [23] The classification dispute is resolved accordingly. The better off overall test [24] The Agreement operates to the exclusion of relevant modern awards. Wage rates under the Agreement are higher than wage rates in the SCHCADS Award. However, Sunday penalty rates are lower than the double time penalty rate in the SCHCADS Award. Given my findings above in relation to the comparator for CSW Category 2 employees, both CSW Category 1 and 2 employees do not appear to be better off overall if they are primarily or only rostered to work on Sundays under the Agreement. Provisions in the Agreement for 24 hour care and sleepovers appear to be inferior to comparable modern award terms, while the Agreement is silent in relation to excursions and related entitlements under clause 25.9 of the SCHCADS Award. Trainee terms and conditions are intended to be those applicable under the National Training Wage and related provisions, but the Agreement cross-references an obsolete schedule of the Aged Care Award 2010 with the result that there are no applicable rates of pay for trainees. [25] An issue arose in the course of dealing with this application about whether CSW Category 4 employees were better off overall under the Agreement when working on -- 7 of 8 -- [2019] FWC 5713 8 Sundays, given the agreed comparator of Home Care Level 5 employees under the SCHCADS Award. [26] Undertakings were given on 2 July 2019 in relation to some of the matters above. Those undertakings are accepted because they address my concerns in relation to whether the Agreement passes the better off overall test, with the following exceptions: 1. The undertaking in relation to work predominately or exclusively performed on Sunday is limited in scope to CSW Category 1 employees. It does not address the concern in relation to CSW Category 2 and Category 4 employees. 2. The undertaking not to employ anyone in the position of CSW Category 4 employee (Enrolled Nurse) may not have operative effect if it operates as a restriction on the performance of work. I am not satisfied that it addresses the concern that those employees may not be better off overall when working exclusively or predominantly on Sundays. Conclusion [27] With the undertakings now given, I am satisfied that employees other than CSW Category 2 and 4 employees will be better off overall under the Agreement. [28] I am also satisfied that each of the other requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. [29] The Applicant will be given an opportunity to file and serve, within 7 days, any further undertaking(s) to address the concerns summarised in paragraph [25] above. If revised undertakings are received, bargaining representatives are to provide their views on those undertakings within 3 business days of receipt. [30] The application will then be determined. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR711395> -- 8 of 8 --