Armest Pty Ltd T/A Miles Witt Partnership

[2020] FWCA 3464

[2020] FWCA 3464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Armest Pty Ltd T/A Miles Witt Partnership
(AG2020/1194)

HILL VIEW AGED CARE NURSING STAFF ENTERPRISE AGREEMENT 2019

Aged care industry
COMMISSIONER HUNT	BRISBANE, 2 JULY 2020

Application for approval of the Hill View Aged Care Nursing Staff Enterprise Agreement 2019.

[1] Armest Pty Ltd T/A Miles Witt Partnership, a bargaining representative appointed by Hill View Aged Care Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Hill View Aged Care Nursing Staff Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Nursing and Midwifery Federation (the ANMF), being a union bargaining representative for the Agreement, regarding the undertakings.

[3] The ANMF raised certain objections to the approval of the Agreement and the proposed undertakings. After receiving further submissions from the ANMF, and further proposed undertakings from the Applicant, I convened a telephone conference between the parties on 24 June 2020. Following the conference, the Applicant provided further amended undertakings (which are the final undertakings annexed to this decision and the Agreement). On 29 June 2020, the ANMF filed further submissions noting concerns about the undertakings, to which I have addressed below. It is noted that the ANMF advised that it was content for the Commission to make a decision on the papers on the materials filed without the requirement of a hearing. I agree it is unnecessary for a hearing to occur.

[4] The award the Agreement is tested against is the Nurses Award 2020 (the Award). I note that the base rate of pay in the Agreement for the lowest classifications of Assistants in Nursing is 3% greater than the Award. For Enrolled Nurses, the Agreement differential is no less than 11% greater than the Award, and for Registered Nurses, no less than 16% greater than the Award.
Conversion of casual employees to permanent employees

[5] On 10 June 2020, the Employer proposed the following undertaking:

“That Agreement clause 10.4(f) Conversion of casual employees to permanent employees will have no effect and will be replaced by Nurses Award 2010 clause 10.5 Right to request casual conversion.”

[6] On 12 June 2020, the ANMF corresponded that the undertaking offered by the Employer met its concern. On 29 June 2020, the ANMF corresponded as follows relevant to the identical undertaking of by the Employer:

“Undertakings 1 and 3 are the same as undertakings previously given, and we remain of the view that they put employees in the same position as employees would be in if the Nurses Award 2010 applied to them, not overall, but with respect to the terms of employment addressed in the undertakings.

[7] I am satisfied that the undertaking by the Employer provides to relevant casual employees the casual conversion provisions of the Award. With base wages in the Agreement at least 3% greater than the Award, I do not hold any better off overall test (BOOT) concern on this issue.

Increased rate of pay for AIN Level 1.2

[8] The undertaking of the Employer increases the Assistants in Nursing Level 1.2 rate to $22.65 per hour. This is a rate 3% greater than the Award rate of $21.99 per hour. On 29 June 2020, the ANMF corresponded as follows relevant to the undertaking of the Employer:

“We have no objection to Undertaking 2, as it slightly increases the base wages for an AIN Level 1.2, but we submit that the Commission cannot be satisfied that such a small wage increase will make every employee who would be entitled to be paid wages at that paypoint (let alone every employee who would be covered by the Agreement) better off overall under the Agreement than they would be under the Award, given the less beneficial terms of the Agreement dealt with in our previous submissions.”

[9] It is important to consider what the earlier submissions of the ANMF were. On 27 May 2020, the ANMF submitted that relevant to an AIN Level 2.1, where there was a 3% differential between the Agreement rate and the Award rate, much of the 3% would be set against the failure of the Employer to pay an additional week of annual leave. The ANMF calculated that one less week of annual leave is equivalent to 1.92%, and together with the loss of 17.5% annual leave loading on that extra week, it totalled 2.26%. For a shiftworker, that amount might be as much as 2.5%.

[10] It was submitted by the ANMF:

“So for a AIN level 2.1 who is a shiftworker under the Award but not under the Agreement, considering the 3% higher base wage and the one week less of annual leave valued at 2.5% of annual base wages, such an employee is monetarily just 0.5% better off under the Agreement than the Award before consideration of all the other less beneficial and more beneficial terms of the Agreement compared to the Award.”

[11] On the ANMF’s own analysis, all employees whose base rate of pay under the Agreement is 3% or more than the Award is better off under the Agreement than the Award, however it would be necessary to have regard to the other matters the ANMF submits would cause the employee to not be better off overall.

[12] Relevant to the one week less of annual leave for employees under the Agreement – six weeks under the Award as opposed to five weeks under the Agreement – I am satisfied that the Agreement’s superior rates of pay mean the employees are better off overall under the Agreement than they are under the Award.

Taking of annual leave

[13] Relevant to when annual leave may be taken, the Agreement made by the Employer and its employees reads:

“30.2(b) Annual leave shall be taken at a mutually convenient time.”

[14] The undertaking of the Employer is:

“That Agreement clause 30.2(b) will have no effect and be substituted with s.88(1) of the NES.”

[15] At [6], the ANMF provided its views on this undertaking. I am satisfied the undertaking meets the requirements of the National Employment Standards (NES), and with base wages in the Agreement at least 3% greater than the Award, I do not hold any BOOT concern on this issue.

Penalty rates for casual Assistants in Nursing

[16] The Employer provided undertakings relevant to casual Assistants in Nursing such that the relevant clauses will now read:

“24. Saturday and Sunday work

24.1 Where an employee other than a casual Assistant-in-Nursing is rostered to work ordinary hours between midnight Friday and midnight Saturday, the employee will be paid a loading of 50% of their base rate of pay for the hours worked during this period. Casual Assistants in Nursing will be paid the 50% loading for Saturday work in accordance with clause 10.4(d).

24.2 Where an employee other than a casual Assistant-in-Nursing is rostered to work ordinary hours between midnight Saturday and midnight Sunday, the employee will be paid a loading of 75% of their base rate of pay for the hours worked during this period. Casual Assistants in Nursing will be paid the 75% loading for Sunday work in accordance with clause 10.4(d).”

[17] Clause 10.4(d) in the Agreement is as follows:

“Casual Assistants-in-Nursing will be paid afternoon and night shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay. Penalties paid for Saturdays, Sundays, public holidays and overtime will be compounded by the casual loading for casual Assistants-in-Nursing.”

[18] On 29 June 2020, the ANMF corresponded as follows relevant to the undertaking of by the Employer:

“Undertaking no. 4 appears to be an attempt to address our concern but these words of the undertaking - “Casual Assistants in Nursing will be paid the 50% loading… ” - are in conflict with the words of the first sentence sub-clause of 24.1 of the Agreement which expressly exclude casual Assistants in Nursing from the entitlement to the 50% penalty for work in ordinary hours on Saturdays.

Undertaking no. 5. appears to be an attempt to address our concern but these words of the undertaking - “Casual Assistants in Nursing will be paid the 75% loading… ” - are in conflict with the words of sub-clause of 24.2 of the Agreement which expressly exclude casual Assistants in Nursing from the entitlement to the 75% penalty for work in ordinary hours on Sundays.”

[19] It appears to me that the ANMF has missed the point in the undertaking given by the Employer. The undertaking does provide for the 50% and 75% penalty, and refers the parties to clause 10.4(d) as to how it is to be adopted.

[20] I am satisfied with the undertaking of the Employer and it causes no BOOT concerns.

[21] The Employer provided undertakings relevant to casual Assistants in Nursing working public holidays such that the relevant clause will now read:

“32.3(a) Except for 25 December, all work done by an employee during their ordinary hours on a public holiday, including a substituted day, will be paid at double-time. Payment of double-time for casual AIN’s is in accordance with clause 10.4(d).”

[22] The undertaking given on this issue has the same effect as the earlier undertaking relevant to specifying 50% and 75% loadings for casual AIN’s, yet the ANMF stated its concerns were satisfied by the Employer’s undertaking on this issue, and in fact proposed the wording for this particular undertaking.

[23] I am satisfied with the undertaking of the Employer and it causes no BOOT concerns.

Other objections of the ANMF

Broken shifts

[24] The ANMF objects to the following clause:

“20.4 An employee who has worked a rostered shift on one day may elect to return to work later on in that day to work a shift that has become available due to illness or an emergency. Where total hours worked on that day exceed 8 hours overtime provisions will apply.”

[25] It submits that the Agreement effectively allows for broken shifts; for work to be done in two periods in one day, separated by an unpaid break. The unpaid break may of unlimited duration (other than limited by the hours within a day).

[26] The Award does not allow for broken shifts, requiring ordinary hours to be performed continuously, except for meal breaks.

[27] The ANMF is critical of the Employer’s reliance on the employee ‘electing’ to return to work. It submitted that it would not prevent the Employer from making a part-time employee’s regular income conditional upon an employee accepting an ‘offer’ to work a broken shift by returning to work later that day for the payment of ordinary time. It considered that in that circumstance the employee’s election would be made under duress.

[28] Further, each broken shift requires the employee to undertake an additional return journey between their residence and their workplace; the costs borne by the employee and the travel time unpaid. It was submitted that under the Agreement there is no minimum period for the other period of the shift, such that it could be as minimal as 15 minutes’ work.

[29] The Employer submitted that the relevant clause is in existence within many of its other enterprise agreements, approved by the Commission, and is contained within the present agreement covering the employees, the Hill View Aged Care Nursing Staff Enterprise Agreement 2016 at clause 15.4

[30] Of course, simply because a clause is within an existing enterprise agreement does not correlate with it being competent to be in a later enterprise agreement, even with the same parties and if no objections were made by the ANMF in the 2016 agreement.

[31] Clause 21.5 of the Award is as follows:

“21.5 The hours of work will be continuous, except for meal breaks. Except for the regular changeover of shifts, an employee will not be required to work more than one shift in each 24 hours.”

[32] I am satisfied that given the elective nature of the employee returning to work a second shift on the same day, in circumstances only where there is a shift that has become available due to illness or emergency, the employee is not ‘required’ to work more than one shift in each 24 hours. The employee may decide if the second shift available is of interest to them, and whether it adequately compensates them for returning to the workplace a second time within that day.

Recognition of wage rates of pervious nursing experience

[33] The ANMF is concerned that if employees are unable to verify their past nursing experience they will be delayed the appropriate classification payment, or fail to be paid at the correct classification at all.

[34] Clauses 16.4 and 16.5 of the Agreement are as follows:

“16.4 At recruitment a new employee will be required to provide proof of previous experience. If unable to provide such proof at recruitment, the new employee will be advised of the requirement to provide proof of previous experience within 6 weeks of engagement. The new employee will be paid at the appropriate rate of pay for the first year of service or the year to which proof of experience is provided. Wages will continue at this rate of pay until proof of previous experience is provided to the Employer or until such time as service has been accumulated to warrant payment at a higher rate. Where proof of previous experience is not provided within 6 weeks of engagement, wages will continue to be paid at that rate of pay until such time as further proof of previous experience is provided to the Employer and only then will the higher rate become payable from the date supplied.

16.5 Subject to proof of previous experience being provided within 6 weeks, the Employer must adjust previous payments back to the date of commencement.”

[35] Clause 15 of the Award is as follows:

“15.4 Progression for all classifications for which there is more than one pay point will be by annual movement to the next pay point, or in the case of a part-time or casual employee 1786 hours of experience, having regard to the acquisition and use of skill described in the definitions contained in Schedule B—Classification Definitions and knowledge gained through experience in the practice settings over such a period.”

[36] It was submitted that the Award contains no requirement for an employee to provide evidence or proof of their experience in their classification. They are entitled to the appropriate payment whether they provide evidence of that experience or not. It was submitted that under the Agreement, if an employee did not provide evidence of their experience for “months or years” they would not be entitled to the payment for the correct classification and experience until such time as they did.

[37] I am satisfied that six weeks is a reasonable period of time for an employee to provide evidence to the Employer of their past experience. When they do provide evidence of this within six weeks, the higher rate will be backdated.

[38] It would be unacceptable for an employee to present evidence to the Employer “months or years” later of past experience, exposing the Employer to a potentially unfunded backpayment.

Paid tea breaks when more than four hours worked in a shift

[39] The ANMF referred the Commission to clause 27.2 of the Award which is as follows:

“27.2 Tea breaks

(a) Every employee will be entitled to a paid 10 minute tea break in each four hours worked at a time to be agreed between the employee and employer.

(b) Subject to agreement between the employer and employee, such breaks may alternatively be taken as one 20 minute tea break.

(c) Tea breaks will count as time worked.”

[40] The ANMF contended that the clause requires an employer to allow a second ten minute paid tea break when any hours above four were worked, whether that was 4.5 hours, 5 hours, and not in blocks of four hours.

[41] Clause 25.2 of the Agreement is as follows:

“25.2 Rest pauses

All employees who work at least 4 continuous hours on any day shall be entitled to a rest pause of 10 minutes’ duration in the employer’s time in the first and where at least 7.6 continuous hours are worked, a further 10 minutes’ in the second half of the working day.”

[42] The Employer submitted that it provides a more beneficial term to employees in the Agreement, only requiring 7.6 ordinary hours, and not 8 ordinary hours to be entitled to a second ten minute paid tea break.

[43] I prefer the Employer’s submission on this issue. I do not agree with the ANMF’s contention that clause 27.2 of the Award provides that an employee is entitled to a second ten minute paid tea break where they work more than four hours and less than eight hours. The ANMF was invited to provide evidence, for example when the Award was created to support its contention. None was forthcoming.

More beneficial terms

[44] The Employer submitted there are several clauses within the Agreement providing more beneficial terms than the Award. These include:

(a) The Award has only one rate of pay at certain classifications, whereas the Agreement provides for three rates with progressively increasing wage margins;

(b) The Award does not have a minimum engagement for part-time employees whereas the Agreement provides for a minimum three hour shift;

(c) Part-time employees can progress through the pay point faster under the Agreement than under the Award;

(d) The Christmas Day penalty rate is double-time and a half in the Agreement as opposed to double-time in the Award;

(e) The Agreement provides for a potential third day of paid compassionate leave, greater than the NES;

(f) The Agreement provides for up to five days paid family and domestic violence leave, greater than the NES; and

(g) The Agreement provides for paid study leave, not contained within the Award.

[45] The ANMF responded:

“Many employees under the agreement will receive no benefit from most of the terms of the agreement that are more beneficial than the Award. Some employees covered by the agreement will receive no benefit of any of the more beneficial terms of the agreement.”

[46] I conclude that the ANMF has been unable to identify any employee who would not be better off overall under the Agreement when compared against the Award.

Satisfaction of statutory tests

[47] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[48] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[49] The ANMF being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the ANMF.

[50]
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 July 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE508420  PR720667>

Annexure A: