Australian Municipal, Administrative, Clerical and Services Union v Healthscope Limited

[2011] FWA 5416

[2011] FWA 5416

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Healthscope Limited
(C2010/5468)

COMMISSIONER SIMPSON BRISBANE, 16 AUGUST 2011

Dispute over application of Shiftwork allowance - whether clause applies to all persons covered by Agreement.

[1] On the 8 November 2010 the Australian Municipal, Administrative, Clerical and Services Union (“ASU”) made an application under s. 739 of the Fair Work Act 2009 (“the Act”) notifying of a dispute with Healthscope Limited (“Healthscope”) regarding the interpretation of clause 6.12 of the Healthscope Queensland Clerical Services Employee Agreement 2009-2012 (“the Agreement”).

[2] I conducted dispute conferences on 23 November 2010 and 21 December 2010 between the parties however the matter was unable to be resolved.

[3] On 9 May 2011 the ASU wrote to Fair Work Australia (FWA) requesting the matter be listed for arbitration and the matter was listed for programming on 2 June and hearing on 15 August 2011.

[4] The ASU filed their outline of submissions with ten exhibits on 6 July 2011 and the Respondent filed their outline of submissions with statements from Katrina De Valle and Jeff Spiteri on 22 July 2011. The Applicant filed reply submissions on 2 August 2011.

[5] I was advised at the commencement of the hearing that the Applicant did not require the Respondents two witnesses for cross examination.

[6] In accordance with my directions the parties provided an agreed statement of facts and the question for arbitration.

[7] The parties agreed that FWA had jurisdiction to deal with the dispute and that it was appropriate for FWA to do so in accordance with clause 3.4 of the Agreement.

[8] Healthscope owns or manages 44 medical/surgical, rehabilitation and psychiatric hospitals in each state and territory of Australia. In addition, it operates a leading pathology business and owns and operates a number of medical and imaging centres.

[9] The dispute is at the Brisbane Private Hospital (“the Hospital”). The Respondent acquired the Hospital on 12 February 2007 from Brisbane Private Hospital Pty Ltd. The business was purchased via a share sale agreement (“the Acquisition”).

[10] At the date of the Acquisition the Brisbane Private Hospital (Clerical Services Staff)- Certified Agreement 2004 (“the 2004 Agreement”) was in place. The Brisbane Private Agreement had been certified by the Queensland Industrial Relations Commission under s156 of the Industrial Relations Act 1999 (Qld) on 8 December 2004 1.

[11] The Respondent became bound by the 2004 Agreement at the date of the Acquisition under the terms of s. 156 of the Industrial Relations Act 1999 (Qld). On 26 February 2010 Fair Work Australia approved the current Agreement. 2

AGREED STATEMENT OF FACTS

[12] Background

1. During the negotiations for the Agreement now known as the Healthscope Queensland Clerical Services Employee Agreement 2009-2012 (Agreement) the provisions described in current clause 6.12 - Shift Allowance were not discussed by either party.

2. The Agreement arose from a number of agreements, including Brisbane Private Hospital Clerical Services Staff Certified Agreement 2007 - 2008 and the Healthscope Allamanda Clerical Employees & Australian Municipal, Administrative, Clerical and Services Union, Union Collective Agreement.

3. The wording for the provisions in clause 6.12 are the same as those found the Brisbane Private Hospital Clerical Services Staff Certified Agreement 2007 - 2008, clause 4.3 Shift Allowance.

4. The Agreement, with the inclusion of clause 6.12 was voted on by employees of the Respondent and the Agreement was made on 25 January 2010.

5. The Agreement was approved by Fair Work Australia on 26 February 2010.

6. The Agreement began to operate from 5 March 2010.

[13] The Proceedings

7. The Applicant alleges that the Respondent has not been applying the entitlements under clause 6.12 of the Agreement to employees who meet the qualifiers of the clause. The Respondent disputes this interpretation.

8. On 8 November 2010, the Applicant filed an Application for Fair Work Australia to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth).

9. The Respondent contends that only employees who qualify as shift workers are entitled the allowances in clause 6.12.

QUESTION FOR ARBITRATION

[14] This dispute is over the application of clause 6.12, Shiftwork Allowance, of the Healthscope Queensland Clerical Services Employee Agreement 2009 – 2012 and whether the clause applies to all persons covered by the Agreement who work during the hours defined as afternoon or night shift.

CONSIDERATION

[15] By way of background the ASU said a member of the ASU, Ms Marie O’Neill, brought the matter to the attention of the Union that from the operative date of the Agreement she was no longer receiving penalty rates as she previously had. Copies of Ms O’Neill’s payslips were provided.  3

[16] The ASU said Ms O’Neill continued to work a similar pattern of shifts as she had prior to the operative date of the Agreement. Nothing changed in regards to Ms O’Neill’s pattern of work after the operative date of the Agreement. 4

[17] The ASU wrote to Brisbane Private Hospital requesting back payment and was subsequently advised by Mr Cliff Evans, General Manager of Brisbane Private Hospital in correspondence on 28 June 2010 5 that the subclause applicable to the Applicant’s members was 6.13.1 of the Agreement, and not clause 6.12.

[18] Healthscope provided further correspondence dated 1 December 2010 from Mr John Douglas 6 explaining its reasons for rejecting the ASU claim. This was in brief that Clause 6.12 only applies to those defined in subclause 1.9 of the Agreement as on ‘Continuous Shift Work’.

[19] Healthscope correspondence of 1 December 2010 states in part;

‘…the shift penalty prescribed in subclause 6.12 of the Agreement is not payable to Monday – Friday employees. Subclause 6.13 applies to such employees.’

And further,

‘Subclause 1.9 of the Agreement (Definitions) defines shift work to mean work that is performed by employees where the hours of work are regularly rostered in accordance with the shift roster covering a 24 hour period over seven days per week. Such employees, by definition, are entitled to the shift work allowances prescribed in subclause 6.12.’

[20] The ASU relies on previous agreements that have applied at the Brisbane Private Hospital including the Brisbane Private Hospital Agreement (Clerical Services Staff) – Certified Agreement 2004 (“2004 Agreement”)  7andthe Holy Spirit Hospital Wickham Terrace – Certified Agreement 2002 (“the 2002 Agreement”) 8. Clause 4.4 in the 2004 Agreement and clause 4.29 in the 2002 Agreement are in similar terms to clause 6.12 of the current Agreement.

[21] The 2002 Agreement applied to all employees at the Hospital whereas the 2004 Agreement applied to employees of the Hospital covered by the Clerical Award - Private Hospitals – State (the “State Award”).

[22] Both the 2002 Agreement and the 2004 Agreement were certified by the Queensland Industrial Relations Commission under section 156 of the Industrial Relations Act 1999 and clause 2.1 in both agreements incorporated all provisions of the State Award save and except inconsistencies with the Agreements.

[23] The State Award was made on 4 March 1996. Clause 4.7 of the original award later became clause 6.12 in a subsequent version. The clause remained in identical terms.

[24] Clause 6.12.1 of the State Award reads as follows:

6.12.1 Monday to Friday Penalty Rates

Full-time, part-time and casual employees who commence to be employed from 4 March 1996 shall be entitled to the following penalty rates:

All ordinary time worked on shifts where the major portion of the shift is worked between the hours of 4.00 p.m. and 8.00 a.m. the following day - 15%.

[25] Within the Definitions section of the State Award the following appears:

1.6.4 “Continuous Shift Work” means work that is performed by employees where the hours of work are regularly rostered in accordance with a shift roster covering a 24 hour period over a 7 day week.

[26] This definition is consistent with the wording in the earlier 1996 version of the State Award at clause 5.1(5).

[27] The current Agreement includes the following clauses relevant to this dispute:

1.9.4 “Continuous Shift Work” means work that is performed by employees where the hours of work are regularly rostered in accordance with a shift roster covering a 24 hour period over a 7 day week.

6.12 SHIFTWORK ALLOWANCE

In addition to the rates of pay prescribed by wage increases of this Agreement, employees whilst engaged on afternoon shift or night shift, as defined, shall be paid an additional 15% penalty rate for each such shift.

For the purposed of this clause:

a. ‘Afternoon shift’ shall mean a shift other than a night shift, as defined herein, finishing between the hours of 6pm and 8pm;

b. ‘Night Shift’ shall mean any shift finishing after 8pm, but before 7am the following day, the major portion of which is worked after 4pm;

c. The percentage which is quoted, shall be the amount which is payable for each shift, in addition to the employee’s ordinary time and wage rate.

This allowance shall not apply to work performance on Saturday and Sunday and statutory holidays, where extra payments apply for such work.

6.13 PENALTY PAYMENTS

6.13.1 Monday to Friday Penalty Rates

Full-time, part-time and casual employees who commence to be employed from 4 March 1996 shall be entitled to the following penalty rates:

All ordinary time worked on shifts where the major portion of the shift is worked between the hours of 4.00 p.m. and 8.00 a.m. the following day - 15%.

6.13.2 Week-end penalty rates

Full-time, part-time and casual employees who commence to be employed from 4 March 1996 shall be entitled to the following penalty rates:

All ordinary time worked on shifts from midnight Friday to midnight Sunday - time and a-half.

6.13.3 Night Shift

A night shift is a shift commencing at or after 1800 or before 0730 the following day, the major portion of the shift must be worked between 1800 and 0730 an allowance of 17% will be payable on ordinary time Monday to Friday.

[28] Healthscope states the relevant clauses of the Agreement are in substance the same as those in the 2004 Agreement. No change occurred arising from the negotiations for the Agreement. Further, as set out in the Agreed Statement of Facts, both parties accept that clause 6.12 was not discussed at the negotiations for the current Agreement.

[29] Evidence relied upon by the ASU to support its case that clause 6.12 of the Agreement should be read such that it can apply to all persons covered by the Agreement who work during the hours defined as afternoon or night shift is that members of the ASU were paid the allowance under the 2004 Agreement  9 as noted in Ms O’Neill’s payslips, but were no longer paid the allowance under the current Agreement10.

[30] The ASU also pointed to a shift in language in the current Agreement to ‘Shiftwork Allowance’ compared to ‘Shift Allowance’ in the two predecessor Agreements.

[31] The evidence of Ms De Valle for Healthscope was that Ms O’Neill is employed in the Front Office of Brisbane Private Hospital. This area is responsible for admitting and discharging all patients. It collates all patient charts for admissions on the following day. It operates the switch board.

[32] The hours of operation were admissions from 6.00 am or 6.30am until 2 pm or 3 pm. Ms Davalle deposes these times vary depending on the number of admissions for that day. Work may finish at 12noon or 12.30pm if there are limited admissions in the afternoon. Discharge hours and next day’s work hours are 11.00 am until 7.00pm. Morning Switchboard is 6.00 am until 1.00 pm. Afternoon Switchboard is 12.30 pm until 9.00 pm. Weekend Switchboard hours are morning 7am until 3.30 pm and afternoon 3.00 pm until 8.00pm.

[33] Accordingly Healthscope submits there can be no suggestion that work in this area is performed in relays over 2 or even 3 shifts as required for it to be termed continuous shift work as defined in the Agreement. The Respondent added that as these roles have different working hours and as Ms O’Neill is multi skilled to perform these duties, this is the reason why she works different hours.

[34] The statement by Mr Spiteri sets out the times Ms O’Neill worked and the total number of hours, for the period from 28 March 2011 to 3 July 2011, as a representative sample period of work. It is evident from this material that the hours of work vary but do not form a pattern that would fall within the meaning of shiftwork as defined within the Agreement or as it as generally understood.

[35] Healthscope submits the shift penalty prescribed in subclause 6.12 of the Agreement is not payable to Monday – Friday employees, which it says is the category of employee that applies to Ms O’Neill. The Respondent argues subclause 6.13 may apply to such an employee if their hours of work entitle them to penalty payments under 6.13.

[36] Healthscope says clause 1.9 of the Agreement defines continuous shift work to mean work that is performed by employees where the hours of work are regularly rostered in accordance with the shift roster covering a 24 hour period over seven days per week. Such employees, by definition, are entitled to the shiftwork allowances prescribed in subclause 6.12.

[37] Healthscope has argued nothing turns on the fact that 1.9.4 refers to “continuous shift work”, and not “shiftwork”. Unless work is in the nature of the Definition prescribed in subclause 1.9.4, subclause 6.12 is not activated.

[38] Healthscope pointed to the hours of work performed in the front office as set out in Ms De Valles evidence saying it does not cover a 24 hour period over 7 days per week. Therefore the shift penalty prescribed under subclause 6.12 is not payable to employees involved in this function, including Ms O’Neill.

[39] Healthscope said on the occasions Ms O’Neill worked on weekends, she was paid the penalty rate of 50% in addition to her ordinary time rate. Healthscope said whether Ms O’Neill was paid the penalty prescribed under subclause 6.12 and its predecessors prior to the Agreement being approved by Fair Work Australia is of no relevance in determining the proper operation of this clause.

[40] Healthscope acquired the Hospital on 12 February 2007. It submitted that the payment to Ms O’Neill of the allowance under clause 4.4 of the 2004 Agreement was an error made by the predecessor to the Respondent which Healthscope conceded it perpetuated itself until it reviewed conditions of employment once the Agreement came into operation on 26 February 2010. Healthscope said an error cannot form any proper basis for a determination as to whether Ms O’Neill was entitled to the allowance under subclause 6.12 of the Agreement.

[41] Healthscope noted that the 2002 and 2004 Agreements incorporated terms of the Award including the “continuous shift worker” definition and the penalties clause.

[42] Healthscope said this is relevant for two reasons. The first reason was that the parties explicitly included the relevant shift work provisions from both previous agreements and also the State Award penalties clause. Accordingly the wording of the Agreement has been varied.

[43] The second reason was that this change had no effect on the substance of the conditions of employment insofar as penalties payable for working at prescribed times. These conditions have been in place since at least 8 December 2004.

[44] I asked Ms Ellis for the ASU what her view was about the relationship between clauses 6.12 Penalty Payments in the Clerical Award - Private Hospitals - State and clause 4.4 in the 2004 Agreement and clause 4.29 in the 2002 Agreement. It was her submission that the Award penalty clause was overridden by the Agreement clause at the time due to inconsistency between them. 11

[45] It is the submission of Healthscope that in considering both subclause 6.12 and 6.13 of the Agreement, it must lead to the conclusion that subclause 6.12 applies to employees who work shiftwork as defined in subclause 1.9.4, and subclause 6.13 applies to employees other than shift workers who work at the times prescribed by that subclause and who are paid penalties prescribed therein.

[46] Healthscope says the relevant clauses for the payment of penalty rates have not been varied under the Agreement. All that has occurred is that the relevant clauses are now explicitly included in the Agreement. Nor was the meaning of this clause the subject of negotiations. Accordingly the effect of the clauses has not changed. The relevant issue is what is the effect of subclause 6.12 and 6.13 of the Agreement and not, as contended by the Applicant, the meaning and effect of subclause 6.12 only.

[47] In Watson & Ors and ACT Department of Disability Housing and Community Services[2008] AIRC 291 (Watson) at 15 Vice President Lawler states:

‘In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.’

[48] It is clear I must consider the Agreement as a whole and in its historical context.

[49] I disagree with the proposition of the ASU that clause 4.29 in the 2002 Agreement and clause 4.4 in the 2004 Agreement overrode clause 6.12.1 of the State Award because of inconsistency. Clause 6.12.1 in the State Award was written in terms that make it clear it applied to employees regardless of whether they fell within the meaning of a “shiftworker”. I am also satisfied on the basis of the evidence that the pattern of hours performed by employees in the front office does not fall within the meaning of shiftwork as defined by the Agreement.

[50] The ASU made the submission that front office workers would never qualify for the penalty in subclause 6.13.1. 12 Further the ASU said certain hours worked by Ms O’Neill on certain days could be described as unsociable hours13 which the ASU maintained supports the view that the parties intended subclause 6.12 in the Agreement would apply. The difficulty with this argument is that the same circumstances the ASU complained of in the Agreement would have also applied to Ms O’Neil under the underpinning State Award at the time. This tends in my mind to further support the Healthscope submission that the arrangement in the Agreement reflected the status quo despite the allowance being paid in error for a time.

[51] The State Award was incorporated into the terms of the 2002 and 2004 Agreements. As the State Award did not explicitly define a spread of ordinary hours as did, for example the common rule Clerical Employees Award - State 2002, (common rule award) (clause 6.1.2) ordinary time could be paid at times under the State Award when under the common rule award (such as work after 6.30pm) it would attract time and a-half for the first three hours and double time thereafter (clause 6.7.1).

[52] I agree with the proposition of Healthscope that the effect of incorporating the former State Award clause 6.12 as 6.13 in the Agreement did not change the status quo as the clause pertaining to payment for “shiftwork”, which was clause 4.4 in the 2004 Agreement later became 6.12 in the current Agreement.

[53] I agree with Healthscopes contention that clause 6.12 of the Agreement properly applies to employees who perform a pattern of work defined as ‘Continuous Shift Work’ at subclause 1.9.4 and further it was an error to apply clause 4.4 in the 2004 Agreement to work that was not work within the meaning of “Continuous Shift Work” as defined by the State Award at the time.

CONCLUSION

[54] The answer to the question for arbitration is no. In summary subclause 6.12 of the Agreement prescribes the penalty payments for employees who work shiftwork which is defined at subsclause 1.9.4.

[55] Ms O’Neill and other employees in the Front Office at the Hospital who do not work shiftwork would become entitled to a penalty payment under subclause 6.13 if they work at times which attract a penalty under that clause.

COMMISSIONER

Appearances:

Applicant: Australian Municipal, Administrative, Clerical and Services Union represented by Ms S Ellis

Respondent: Healthscope Limited represented by Mr J Douglas

Hearing details:

15 August

BRISBANE

2011

 1   CA566 of 2004.

 2   [2010] FWAA 1632.

 3   ASU outline of submissions Exhibit 1.

 4   ASU Outline of submissions Exhibit 2

 5   ASU outline of submissions Exhibit 5

 6   ASU Outline of submissions Exhibit 8

 7   ASU Outline of submissions Exhibit 9

 8   ASU Outline of Submissions Exhibit 10

 9   ASU Outline of Submissions page 3 Paragraph 16

 10   ASU Outline of Submissions page 2 Paragraph 6

 11   Transcript dated 15 August PN 41-44

 12   Transcript dated 15 August PN 89

 13   Transcript dated 15 August PN 95

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