Australian Red Cross Blood Service (a division of the Australian Red Cross Society) T/A Australian Red Cross Blood Service
[2018] FWC 1554
•16 MARCH 2018
[2018] FWC 1554
The attached document replaces the document previously issued with the above code on 16 March 2018.
This document has been reissued to amend a typographical error in [5]
Michelle Robinson
Associate to Deputy President Kovacic
Dated 19 March 2018
| [2018] FWC 1554 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Red Cross Blood Service (a division of the Australian Red Cross Society) T/A Australian Red Cross Blood Service
(AG2017/3914)
AUSTRALIAN RED CROSS BLOOD SERVICE QUEENSLAND NURSING ENTERPRISE AGREEMENT 2017
Health and welfare services | |
DEPUTY PRESIDENT KOVACIC | CANBERRA, 16 MARCH 2018 |
Application for approval of the Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2017
[1] An application was made on 31 August 2017 for approval of an enterprise agreement known as the Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2017 (the Agreement). The application was made by the Australian Red Cross Blood Service (a division of the Australian Red Cross Society T/A Australian Red Cross Blood Service) (the Blood Service) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
[2] On 5 September 2017 the Queensland Nurses and Midwives’ Union (QNMU) sent an email to the Fair Work Commission (the Commission) stating that it intended lodge a Form F18 – Statutory declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) as soon as possible. The QNMU was cited in the application as a bargaining representative for the Agreement.
[3] On 17 October 2017 both the QNMU and the Australia Nursing and Midwifery Federation (ANMF) (together referred to as the Unions) filed Form F18’s in identical terms indicating that they did not support approval of the Agreement. By way of background, the QNMU is the Queensland branch of the ANMF. Specifically, the Unions objected to the approval of the Agreement on the grounds that:
• the employer did not take all reasonable steps to give a Notice of Employee Representational Rights (NERR) to employees;
• employees were not provided with access to material incorporated into the Agreement;
• the group of employees covered by the Agreement was not fairly chosen;
• the Agreement did not pass the better off overall test (BOOT);
• the terms of the Agreement were not properly explained to employees; and
• the Agreement was not properly signed.
[4] The Unions also raised a number of concerns regarding the Form 17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) filed by Mr Stephen Bosse, Manager, People & Culture for the Blood Service.
[5] On 27 November 2017 the Commission’s Member Support Research Team sent an email to the Blood Service setting out the Commission’s preliminary views regarding the Agreement. The email read as follows:
“I am writing in relation to the above agreement which has been allocated to Deputy President Kovacic.
On review of the application, the Deputy President has raised the following:
1. Clauses 27.7, 24.8 and 14.7 of the Agreement appear to provide inconsistent definitions for shift workers who are entitled to an additional week of annual leave.
2. The Agreement provides for employees to take TOIL in lieu of payment for overtime. It appears to be unclear as to how TOIL accrues under the Agreement.
As a result of the various Union objections, the Deputy President intends to convene a hearing regarding the application. You will hear from the Deputy President’s Chambers shortly.”
[6] The matter was subsequently listed for hearing on 6 December 2017, with the Notice of Listing inviting the parties “to provide to the Commission and serve on all other parties in the matter any further submissions, information or undertakings, by close of business on Tuesday, 5 December 2017.”
[7] The Blood Service on 5 December 2017 provided its submissions in support of its application for approval of the Agreement to the Commission. On 6 December 2017 the QNMU emailed the Commission advising that it was unable to consider and respond to the submissions filed by the Blood Service prior to that day’s hearing. As such, it requested that the hearing later that day be for mention and directions. In the circumstances, the Commission agreed to that request. Directions were subsequently issued on 7 December 2017, with the Unions’ submissions received on 8 January 2018 and the Blood Service providing its submissions in reply on 12 January 2018. The QNMU also filed additional material on 23 January 2018 in response to the Blood Service’s submissions in reply. Whilst that additional material was not required by the Directions, I have nevertheless had regard to the additional material provided by the QNMU.
[8] For the reasons outlined below, I am satisfied the Blood Service complied with the various pre-approval steps specified in the Act, that the Agreement was genuinely agreed to by employees, that the group of employees covered by the Agreement was fairly chosen, that the Agreement was signed in accordance with the requirements specified in the Act and the Fair Work Regulations 2009 (Cth) (the Regulations) and that, taking into account the undertakings proffered by the Blood Service, the Agreement passes the BOOT. Subject to receiving a further undertaking (see paragraph [49] below) I am prepared to approve the Agreement. A decision approving the Agreement will be issued once that further undertaking is provided in terms acceptable to the Commission.
The Applicant’s case
[9] In its submissions of 5 December 2017, the Blood Service among other things:
• submitted in respect of the issue raised by the Commission regarding the inconsistent definitions of shiftworkers contained in the Agreement that clause 24.8 of the Agreement set out the definition of a shiftworker for the purposes of the National Employment Standards (NES);
• acknowledged that the Agreement was unclear as to how time off in lieu of overtime (TOIL) accrued and proffered the following undertaking to address that issue
“a. The following words will be included in clause 15.10 – Time off in lieu of overtime
“Time of in lieu will be calculated on the basis that an employee may take one hour of time off for each hour of overtime plus a period of time equivalent to the overtime penalty occurred.”;
• disputed the Unions’ contentions that it had not complied with the Act’s pre-approval requirements, highlighting inter alia that the NERR was emailed to all employees covered by the proposed Agreement on 23 May 2017, the three documents referred to in the Unions’ F18’s were not incorporated into the Agreement and were available to all employees on the Blood Service’s intranet, all employees were provided instructions on the voting process and a copy of the proposed Agreement on 31 July 2017, it was permissible for the one managerial staff member in Queensland to be excluded from coverage under the Agreement, and it took reasonable steps to explain the terms of the proposed Agreement to relevant employees with a summary of the proposed changes reflected in the Agreement sent to all employees on 31 July 2017;
• submitted with regard to the BOOT that the Commission was not required to undertake a ‘line by line’ analysis but rather assess the Agreement as a whole;
• provided a comparative review of the Agreement against the Nurses Award 2010 1(the Nurses Award) to address the Unions’ BOOT concerns and also provided a number of sample calculations for different work patterns to demonstrate that employees would be better off overall under the Agreement; and
contended that the employee who signed the agreement was a member of a class of employees covered by the Agreement and therefore had the authority to sign the Agreement pursuant to Regulation 2.06A(3) of the Regulations.
[10] Key aspects of the Blood Service’s submission in reply included that:
• it was willing to, should the Commission require, provide a further Statutory Declaration reflecting its previous submissions regarding the various pre-approval concerns raised by the Unions;
• the more generous salary and allowance payments under the Agreement compensated employees for those less beneficial aspects of the Agreement when compared to the relevant modern awards, including the non-payment of shiftworkers for public holidays which fall on a Saturday or Sunday which they do not work and the annual leave loading for shiftworkers being 17.5 per cent;
• the wording of clause 27 of the Agreement was sufficiently clear to ensure that any gazetted State wide or local holidays in Queensland would be observed as public holidays;
• the entitlement to payment of overtime for working during meal breaks would rarely be accessed because of the Blood Service’s practice of not requiring staff to work during meal breaks, adding that the higher rates of pay and other benefits under the Agreement were also relevant in this regard;
• with regard to casual employees it proffered the following undertaking
“a. The following words will be included at the end of the “Introduction” sections under the heading “Part 3 – Hours of Work” (on page 9)
“This does not apply to casual employees with respect to their casual loading. Casual loading is payable in addition to any shift penalties or loadings that may otherwise apply to the work performed.”;
• the majority of sites serviced by Donor Mobile Units (DMU’s) were located within 50kms of the relevant Donor Centre, adding that a requirement for an employee to travel to a permanent location within 50kms of their residence would not be considered unreasonable or give rise to any travel entitlement under the Award; and
• the example attached to the Unions’ submission was fundamentally misconceived because it applied the travel allowance to all travel, as opposed to travel in the course of duties (between locations).
The Unions’ case
[11] As previously noted, the Unions in their respective Form F18’s raised a number of issues. The Unions’ contentions in respect of those issues are set out in further detail below:
• the employer did not take all reasonable steps to give a NERR to employees
- the Unions highlighted among other things that the email sent to all employees and to which the NERR was attached was not attached to the F17 and that many employees did not attend the briefings at which some NERR’s were distributed to employees;
• employees were not provided with access to material incorporated into the Agreement
- the Unions contended that the Blood Service did not take any steps to ensure that relevant employees had access to documents such as the Blood Service National Travel Policy and Blood Service policies and procedures referred to in clauses 22.1 and 35.2 respectively of the Agreement or that relevant employees had access to a copy of the proposed Agreement throughout the access period;
• the group of employees covered by the Agreement was not fairly chosen
- the Unions submitted that clause 4.2. of the Agreement which excluded employees who report directly through to an Executive Director from coverage under the Agreement allowed the Blood Service to remove any employee from coverage under the Agreement by making the employee report through to an Executive Director;
• the Agreement did not pass the BOOT
- the Unions highlighted a number of differences between the Agreement and the Nurses Award including that the Agreement provided one less week of annual leave than the Award, only provided for annual leave loading of 17.5 per cent as opposed to the greater of that amount or the penalties the employee would have received had they not been on leave, deprived casual employees of penalty rates that were less than 25 per cent and conversely deprived them of the casual loading in circumstances where penalty rates were more than 25 per cent, and provided lesser protection than the Award against changes to an employee’s roster within 7 days of the roster commencing;
• the terms of the Agreement were not properly explained to employees
- the Unions contended that no explanation was provided to employees who did not have a bargaining representative or to employees from non-English speaking backgrounds in a manner that was appropriate to their particular needs and circumstances; and
• the Agreement was not properly signed
- the Unions submitted that the employee who signed the Agreement was not a representative of employees, adding that the employee was a Donor Centre Manager which meant that she was an employer representative.
[12] As to the Unions’ concerns regarding Mr Bosse’s F17, the Unions stated in their respective F18’s that they disagreed with the responses provided at Items 1.3, 1.4, 2.12, 3.1, 3.4, 3.5 and 3.6 of the F17.
[13] In their written submissions of 12 January 2018 the Unions reiterated and expanded upon the concerns set out in their respective F18’s. Key aspects of the Unions’ written submissions included that:
• the Blood Service’s submissions regarding the definition of shiftworker issue were not a term of the Agreement and that an undertaking was required to remove any ambiguity between the provisions, also adding that the definition of a shiftworker was less beneficial when compared to the definition in the Nurses Award;
• the Agreement failed to recognise some public holidays, e.g. Easter Sunday, and that clauses 27.1–27.3 were impermissible because they were detrimental to an employee when compared to the NES;
• the undertaking proffered by the Blood Service in respect of TOIL would be neither more or less beneficial to an employee when compared to the Nurses Award, adding that many other terms of the Award provision were more beneficial to employees; and
• one of the examples attached to the Blood Service’s submissions miscalculated the amount of annual leave loading payable under the Nurses Award.
[14] Attached to the Unions’ written submissions was a comparison of the monetary entitlements payable under the Agreement as opposed to the Nurses Award for a hypothetical employee (Florence Bryce) classified at Level 1 of the Agreement and working 24 hours per week at the Townsville Donor Centre. More specifically, Florence worked 8 hours per day on Monday, Wednesday and Friday. The comparison estimated that Florence would be over $11,100 worse off per annum under the Agreement primarily due to reduced travel payments attached to having to travel to work in a DMU in Charters Towers three times in one out of every four weeks and not being paid penalty rates when required to work through her lunch break for two days each week. Of note, the comparison indicated that Florence’s base rate of pay under the Agreement would be almost $6,000 per annum more than under the Nurses Award.
[15] In its email of 23 January 2018 the QNMU disputed those aspects of the Blood Service’s submissions in reply relating to the example attached to Unions’ written submissions. Among other things, the QNMU contended that there was nothing in the Agreement or anything else that precluded the Blood Service from resuming or commencing operations of DMU’s wherever it wanted and directing employees to travel to those locations.
The statutory framework
[16] The relevant provisions of the Act are set out below.
173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.
180 Employees must be given a copy of a proposed enterprise agreement etc.
…
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(c) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
186 When the FWC must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) The FWC must be satisfied that the agreement does not include any designated
outworker terms.
Requirement for a nominal expiry date etc.
(5) The FWC must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.
Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).
187 When the FWC must approve an enterprise agreement—additional requirements
Additional requirements
(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.
Requirements relating to greenfields agreements
(5) …
190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(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 each award covered employee, and each prospective award covered 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.
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.
When a greenfields agreement passes the better off overall test
(3) …
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered 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:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) Thetest timeis the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, 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 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.” (Underlining added)
Consideration of the issues
Was the Agreement genuinely agreed to?
[17] The Unions highlighted among other things that the email sent to all employees and to which the NERR was attached was not attached to the F17 and that many employees did not attend the briefings at which some NERR’s were distributed to employees. The Blood Service submitted that the NERR was sent by email to all employees covered by the Agreement on 23 May 2017, with the email distribution list compiled using payroll data to include all employees who were covered by the predecessor agreement. In addition, copies of the NERR were made available at briefing sessions for staff and on noticeboards. The email of 23 May 2017 was addressed to (QLD) Nurses Enterprise Agreement Employees and read as follows:
“Hi all
The Blood Service has initiated bargaining in relation to the Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2017.
In accordance with the requirements of the Fair Work Act, please find attached the Notice of Employee Representational Rights.
Any nominations for bargaining representatives should be either provided directly to your Manager or forwarded to … from the Qld People & Culture Team at the following address:
…” 2
[18] Regulation 2.04 of the Regulations which deals with how a NERR is to be given to employees provides:
“2.04 Notice of employee representational rights—how notice is given
(1) For subsection 173(5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee’s email address at work; or
(b) another email address nominated by the employee.
(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet.
(6) The employer may fax the notice to:
(a) the employee’s fax number at work; or
(b) the employee’s fax number at home; or
(c) another fax number nominated by the employee.
(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.
Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee.” (Underlining added)
[19] Having regard to the requirements of Regulation 2.04 and the steps taken by the Blood Service to give the NERR to relevant employees, I am satisfied that as required by s.173(1) the Blood Service took all reasonable steps to give notice of the right to be represented by a bargaining representative for the agreement to each employee who will be covered by the Agreement and was employed at the notification time for the Agreement.
[20] The Unions further contended that the terms of the Agreement were not properly explained to employees and that employees were not provided with access to material incorporated into the Agreement. In respect of the latter contention, the Unions submitted that the Blood Service did not take any steps to ensure that relevant employees had access to documents such as the Blood Service National Travel Policy and Blood Service policies and procedures referred to in clauses 22.1 and 35.2 respectively of the Agreement or that relevant employees had access to a copy of the proposed Agreement throughout the access period.
[21] The Blood Service submitted that the Agreement was sent to all employees on 31 July 2017 together with a summary of the proposed changes reflected in the Agreement when compared with the predecessor agreement as well as a link to access all documents relevant to the proposed Agreement. A copy of that email which again was addressed to (QLD) Nurses Enterprise Agreement Employees was attached to its submissions of 5 December 2017 and read as follows:
“Hi everyone
You are receiving this email as your employment with the Blood Service is covered by the QLD Nursing Enterprise Agreement.
You are being asked to review and consider the attached proposed agreement as we will be asking you to cast your vote on this agreement from 8am, Tuesday 15 August 2000 to 4pm, Friday 18 August 2017. Voting will be conducted via an external provider, Collections Australia Pty Ltd with the website set up for Blood Service employees to access. All employees covered by the QLD Nursing Enterprise Agreement have a right to vote, and we encourage you to have your say.
Please review the following attachments:
- EA Update
- Summary of proposed changes table
- Proposed Australian Red Cross Blood Service Nursing Enterprise Agreement Queensland 2017
- Voting Instructions
This information can also be accessed on our public shared drive by clicking on the following link: ‘QLD Nurses Enterprise Agreement 2017’
If you have any questions about the proposed changes please talk to your Manager, a bargaining representative or send an email to …” (Emphasis as per original)
[22] The Blood Service further submitted that all employees covered by the proposed Agreement were required to read and acknowledge procedures and policies in English as part of their ongoing employment and that it was not aware of any employee who would be covered by the proposed Agreement who was not able to read or write English.
[23] In this case the access period commenced on 8 August 2017, i.e. seven days before voting on the Agreement opened on 15 August 2017. From the above email it is clear that employees had access to a copy of the proposed Agreement from 31 July 2017 which is in excess of the seven day access period specified in s.180 of the Act.
[24] The issue of genuinely agreed was considered by Justice Flick in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd 3(One Key) in which he observed as follows:
“The requirement imposed by s 180(5) to “take all reasonable steps to ensure that … the terms of the agreement, and the effect of those terms, are explained” is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case; but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee.” 4 (Underlining added)
[25] A relevant consideration in this case is that the proposed Agreement is in almost identical terms to the predecessor agreement which passed its nominal expiry date on 31 January 2017, i.e. the Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2014 5(the 2014 Agreement).It is therefore not surprising that the comparative table emailed to employees on 31 July 2017 highlighted the changes made in the proposed Agreement when compared to the 2014 Agreement.As to the explanation provided in the comparative table, the following extract6 is illustrative:
| Subject of discussion | Current Agreement | Proposed Changes | Comments | |
Meal Allowance – Registered Nurse | New | Under the proposed new agreement the Blood Service will compensate RNs who are required to stay on-site during their meal break by paying them a meal allowance. We will also ensure that if there break is interrupted, they will be given the opportunity to take the equivalent time is a rest break during the remainder of the shift. | The Blood Service recognises the important role RNs play in providing the clinical oversight of a collection session. On occasions an RN may be required to stay on-site during the meal break in order to meet the blood service’s operational requirements of having RN clinical oversight. The blood service will compensate RNs who are in the situation by paying them a meal allowance. We will also ensure that if there rest break is interrupted, by a need for them to provide clinical oversight, they will be given the opportunity to take the interrupted time, as a break later in the shift. Add the following wording: 17.6 Where an employee is the only Registered Nurse (RN) on-site and is therefore required to remain at that location to provide clinical oversight during their meal break, they will be paid an amount equivalent to the meal allowance in accordance with appendix 2 – allowances. This clause will not apply to a Donor Centre Manager (DCM). 17.7 Any time lost during their meal break to provide clinical oversight should be made up during the remainder of the shift. | |
Meal Allowance | Change | Where an employee is required to work through a meal break, overtime shall apply until such time as the meal break is provided. | Removed | The current Agreement states that “actual meal times shall be taken in accordance with operational requirements”. As meal times are not rostered and are currently allocated during a shift based on operational requirements, employees are not being asked to work through meal breaks and therefore are not entitled to overtime. The proposed Agreement has removed the reference to overtime as it does not apply in practice. |
[26] In circumstances where the Agreement involves a limited number of changes when compared to the 2014 Agreement, I consider the approach adopted by the Blood Service to have been appropriate. Further, there was no material put before the Commission from employee(s) covered by the Agreement suggesting that they were dissatisfied with the information provided to them regarding the Agreement.
[27] With regard to the issue of employees having access to material incorporated into the Agreement, the following are the Agreement provisions cited by the Unions in their submissions:
“22.1 Where an employee is required to travel during the course of their employment, reimbursement shall be in accordance with the Blood Service National Travel Policy, as may be varied from time to time. The Travel Policy is separate from this Agreement and does not form part of this Agreement. The provisions of this policy will not be reduced during the currency of this Agreement.
35.2 Whilst employees are required to comply with Blood Service policies and procedures they do not form part of this Agreement or their contract of employment.
Appendix 3
Title | Grade | Descriptor |
Donor Services Nursing Assistant | Nursing Grade 1 | A member of the nursing job family other than a Registered of Enrolled Nurse, who is employed to assist a Registered of Enrolled Nurse in the provision of a range of nursing and other duties as defined by the Blood Service agreed national job description.” |
(Underlining added)
[28] The issue of whether or not material is incorporated into an agreement by reference was considered by Deputy President Gostencnik in Broadsword Marine Contractors Pty Ltd v Maritime Union of Australia, The and Others 7 (Broadsword). In that case, the Deputy President set out his approach on that issue in the following terms:
“[26] The question whether the policies referred to in each of the abovementioned clauses of the Agreement are incorporated into the Agreement by reference may, for present purposes, be answered by asking whether the provisions of these clauses of the Agreement impose any obligation on employees who are covered by the Agreement to comply with the policies to which reference is made.” 8
[29] Following the approach set out in Broadsword, I do not consider that either clause 22.1 or the reference to “national job description” in Appendix 3 of the Agreement impose any obligations on employees. Accordingly, I do not consider that those documents are incorporated into the Agreement. However consistent with the decision in Broadsword, clause 35.2 of the Agreement by requiring employees to comply with Blood Service policies and procedures has the effect of incorporating those policies and procedures into the Agreement. Against that background, on 9 March 2018 the Commission sent an email in the following terms to the Blood Service:
“Dear Ms Junkeer and Mr Bosse
I seek further information regarding an issue arising from the Blood Service’s submissions of 5 December 2017 in support of the application for approval of the Australian Red Cross Blood Service Nursing Enterprise Agreement 2017 (the Agreement). In those submissions in response to the concerns raised by the QNMF and ANMF regarding access to Blood Service policies and procedures, you submit that the Blood Service’s policies and procedures are available for access by all employees through the Blood Service’s intranet. Against that background, I would seek any further information you may wish to provide as to how employees are made aware of/familiar with the Blood Service’s policies and procedures and how employees are informed of how those policies and procedures can be accessed.”
[30] In its response of 14 March 2018 the Blood Service advised among other things that its policies and procedures were disseminated and available to employees as follows:
• all policies and procedures were available on its intranet via the ‘IQ’ document portal;
• IQ notified employees of the release or update of a relevant new policy/procedure and recorded the acknowledgement by an employee that they had read and understood the policy/procedure (if acknowledgement was required);
• a fortnightly newsletter outlining all key changes to policies and procedures was distributed within the Donor Services Division by email;
• all employees were required to attend corporate induction as part of the commencement of their employment during which they were shown the location of IQ on the intranet;
• induction facilitators also referred to the Blood Service’s policies and procedures as part of the induction content;
• there was a specific section on its intranet to support new employees, with that site specifically identifying the importance of compliance with policies and procedures, with the site stating inter alia:
“Policies, procedures, and forms
…
Policies
We use policies at the Blood Service to define our plans and actions as they relate to a particular topic. Our policies will help you understand your own responsibilities and inform your decision-making, as well as the actions of those around you.
You can locate our policies on our document management system, IQ.
…
Be compliant in my role
We make safety and quality part of everything we do, and been compliant within your role is an important part of living our values.
Below are some of the most important requirements for staying compliant in the Blood Service.
…
Policies
We use policies at the blood Service to define our plans and actions as they relate to a particular topic. Our policies will help you understand your own responsibilities and inform your decision-making, as well is the actions of those around you. You can locate our policies on IQ.”; and
● its policies and procedures were regularly audited by the Therapeutic Goods Administration (TGA – which licences each Blood Service collection site) to ensure compliance with Blood Service policies and procedures as part of the conditions of maintaining its TGA licence.
[31] In Broadsword Deputy President Gostencnik determined as follows:
“[32] The requirement in s.180(2) of the Act is not one expressed in absolute terms. Rather, it is a requirement that an employer must take all reasonable steps to ensure, relevantly that material incorporated into an agreement is given to employees during the excess [sic] period or that employees have access to the material throughout the access period.
…
[34] To the extent that certain policies have been incorporated by reference, it seems apparent from Mr Paul’s evidence that employees had access to those policies throughout the access period as they had been provided with all of the policies during induction. The policies were also accessible at the workplace. These are policies with which the employees are expected to be familiar and comply during their employment with the Applicant. That is why they are given copies during induction. In the circumstances, I do not think it reasonable that the Applicant be separately required to provide employees with another copy of these policies.
[35] On the basis of the material before me I am satisfied that the Applicant has complied with s.180(2) of the Act.” 9
[32] Based on the material provided by the Blood Service on 14 March 2018, the approach to the provision of Blood Service policies and procedures in this case is similar to those set out by the Deputy President in Broadsword. In particular I note that in this case as part of their induction employees are made aware of Blood Service policies and procedures and how to access them via its intranet, that employees are advised on a fortnightly basis of updates to existing policies and/or new policies and that in respect of some policies and procedures employees are required to acknowledge that they have read and understood the policy/ procedure. Accordingly, for reasons similar to those set out in Broadsword, I do not think it reasonable that the Blood Service in this case be required to provide employees with separate copies of its policies and procedures during the access period. I am therefore satisfied that the Blood Service met the requirements of s.180(2) of the Act.
[33] Beyond the above, the Unions also submitted that clause 4.2. of the Agreement which excluded employees who report directly through to an Executive Director from coverage under the Agreement allowed the Blood Service to remove any employee from coverage under the Agreement by making the employee report through to an Executive Director.
[34] The Blood Service submitted that it was permissible for it to expressly exclude a certain group of positions, adding that in this case it was those who reported to an Executive Director and that this only affected one managerial staff member in Queensland. Further, at Item 2.2 of the F17 which deals with the scope of the Agreement, Mr Bosse declared as follows:
“The Proposed Agreement covers employees in Queensland engaged in the classifications in Appendix 1 (and as further defined by Appendix 3).
It is submitted that the group of employees covered by the Proposed Agreement is fairly chosen as they are geographically and operationally distinct.
Firstly, the proposed agreement applies only to roles within Queensland (as the employer has a different enterprise agreement in place with its employees in each state and territory where it operates).
Secondly, in accordance with clause 4, the Proposed Agreement does not include members of the Executive, the Senior Leadership Team or Positions which report directly through to an Executive Director.
The roles set out at Appendix 1 operationally distinct from the managerial roles to which the Proposed Agreement does not apply.”
[35] Specifically, clause 4 – Scope of the Agreement provides:
“4.1 This Agreement shall apply to all employees employed by the Blood Service in Queensland who are employed in any of the classifications specified in Appendix 1 (Classification Pay Ranges).
4.2 To avoid doubt, this Agreement does not apply to or cover employees employed in any of the following positions within the Blood Service in Queensland:
- Members of the Executive;
- Senior Leadership Team;
- Positions which report directly through to an Executive Director.”
[36] It is not uncommon for agreements to exclude managerial employees from their coverage. I consider the exclusion of managerial employees in this case to be appropriate. Against that background, I am satisfied that the group of employees covered by the Agreement was fairly chosen on the basis that they are geographically and operationally distinct.
[37] Having regard to the above analysis I am satisfied that the Blood Service complied with the various pre-approval steps specified in the Act, that the Agreement was genuinely agreed to by employees and that the group of employees covered by the Agreement was fairly chosen.
Was the Agreement signed in accordance with the Regulations?
[38] As previously mentioned, the Unions submitted that the employee who signed the Agreement was not a representative of employees. On the other hand, the Blood Service contended that the employee who signed the agreement was a member of a class of employees covered by the Agreement and therefore had the authority to sign the Agreement pursuant to Regulation 2.06A(3) of the Regulations.
[39] Regulation 2.06A of the Regulations sets out the requirements for signing and enterprise agreement and provides as follows:
“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement
(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.
(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:
(a) it is signed by:
the employer covered by the agreement; and
at least 1 representative of the employees covered by the agreement; and
(b) it includes:
(i) the full name and address of each person who signs the agreement; and
(ii) an explanation of the person’s authority to sign the agreement.
Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.
(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”
[40] The Explanatory Statement for the Fair Work Amendment Regulations 2009 (No.3) which inserted Regulation 2.06A stated inter alia as follows:
“Signature requirements for enterprise agreements
…
These regulations require the signatures of both the employer(s) and at least one representative of the employees, who may or may not be an employee bargaining representative. For example, an employee who is not a bargaining representative may sign on behalf of all employees. One of the benefits of this approach will be that an employer will not need to obtain a bargaining order to compel a bargaining representative to sign as the employees could appoint any person to sign on their behalf.” 10 (Underlining added)
[41] The Full Bench in McDermott Australia Pty Ltd v The Australian Workers’ Union, & The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 11(McDermott) considered the issue of signature requirements and concluded as follows:
“[56] In this case, Mr Coleman is an employee in a class of employees who will be bound by the Agreement; as such he is therefore a representative of the employees covered by the Agreement. The authority in the context of the regulation is the employee’s capacity to sign; which in Mr Coleman’s case is that he is an employee covered by the Agreement.
[57] Regulation 2.06A does not require a representative who signs the Agreement to be appointed. The Explanatory Statement cannot elevate the signature requirements to be in excess of the Regulations. While there is no reason why employees could not appoint a representative to sign on their behalf as suggested in the Explanatory Statement, it is not a mandated requirement, nor is there any prescribed process for ‘appointing’ a representative.” 12
[42] It is not disputed that Ms Bateman who signed the Agreement on behalf of employees is an employee who is covered by the Agreement. In accordance with Regulation 2.06A and consistent with the decision in McDermott she is therefore eligible to sign the Agreement on behalf of employees. I note also that Ms Bateman is cited as an employee bargaining representative in the application seeking approval of the Agreement.
Does the Agreement pass the BOOT?
[43] As previously mentioned, the Blood Service proffered two undertakings to address issues raised by the Commission regarding the Agreement and which go to the BOOT. Those undertakings address my concerns and do not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. I am therefore willing to accept the undertakings.
[44] With more particular regard to the BOOT, as stated by the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Company Pty Ltd t/a Beechworth Bakery 13(Beechworth Bakery):
“[12] The application of the better off overall test is not to be applied as a line by line analysis. Rather it is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees of an agreement’s application compared to the application of a relevant modern award. The application of the better off overall test therefore requires the identification of terms of an agreement which are more beneficial to the relevant employees when compared to the relevant modern award, the terms of an agreement which are less beneficial or detrimental when compared to the relevant modern award and then an overall assessment of whether each relevant employee would be better off under the agreement.” 14 (Endnotes not included)
[45] I agree and adopt that approach.
[46] The Commission’s analysis of the Agreement indicates that the rates of pay provided for in the Agreement are between 24 per cent and 119 per cent above those provided for in the underpinning awards, i.e. the Nurses Award and Health Professionals and Support Services Award 2010 15(the Health Professionals Award). (For the purposes of this decision the Nurses and Health Professionals Awards will be referred to together as the Awards.) This is a significant differential.
[47] The following sets out the Commission’s analysis of the Agreement in terms of key provisions which are more beneficial to employees than the Awards and those which are less beneficial to employees.
More beneficial provisions
• Clause 14.6 – Employees whose ordinary working hours include Saturday or Sunday provides for a loading of 100 per cent for work performed between midnight Saturday and midnight Sunday. This compares with a loading of 50 per cent and 75 per cent under the Health Professionals and Nurses Awards respectively.
• Clause 23.2 – Personal Leave provides for 15 days personal leave per annum. The NES provides 10 days Personal/Carer’s Leave per annum.
• Clauses 23.19–23.21 – Domestic Violence provide, inter alia, for access to accrued personal leave for the purposes of attending appointments related to domestic violence. The Awards do not provide for domestic violence related leave.
• Clause 28.3 – Paid Parental Leave Entitlement which provides that eligible employees will receive 14 weeks paid maternity and adoption leave. The Awards do not provide for paid parental leave.
• Clause 28.5 – Paid Concurrent (Paternity) Leave Entitlement which provides an employee (other than a casual employee) who is a supporting parent one weeks’ paid concurrent leave at the time their partner gives birth to a child or at the time the employee adopts a child. There is no equivalent provision in the Awards.
• Clause 38 – Redundancy provides for a severance payment of 3 weeks ordinary pay for each completed year of service up to a maximum of 39 weeks’ pay (4 weeks ordinary pay shall apply to an employee with more than 1 but less than 2 years of continuous service). This is more generous than the NES for employees with more than 3 years continuous service.
Less beneficial provisions
• Clause 17.5 – Meal and Rest Breaks which does not provide any additional compensation where an employee works longer than 5 hours without a meal break due to operational requirements. The Nurses Award provides that in this situation an employee is to be paid overtime until the meal break is taken.
• Clause 21 – Donor Mobile Allowance which provides employees an allowance of $12.10 per day in lieu of any additional claims relating to working on a Donor Mobile Unit. Under the Awards employees are entitled to an allowance of not less than $0.78 per kilometre in circumstances where the employee is required and authorised to use their own motor vehicle in the course of their duties.
• Clause 24.1 – Annual Leave and Leave Loading which provides that full time employees are entitled to 4 weeks paid annual leave for each completed 12 months of continuous service. The Nurses Award provides 5 weeks paid annual leave for each completed year of service. (Shiftworkers are entitled to an additional weeks’ annual leave under both the Agreement and the Awards.)
• Clause 24.2 – Annual Leave and Leave Loading which provides that employees are entitled to a 17.5 per cent loading when annual leave is taken. The Awards provide that shiftworkers will be entitled to the higher of the 17.5 per cent loading or the weekend and shift penalties the employee would have received had they not been on leave during the relevant period.
• Clause 27.5 – Public Holidays which provides that where a shiftworker is entitled to the additional week’s annual leave under clause 24 of the Agreement they will not receive the benefit of a public holiday which falls on a Saturday or Sunday unless worked. The Awards do not include such an exclusion.
[48] The comparison provided by the Unions in respect of the hypothetical employee Florence indicated that under the Agreement she would be over $11,000 per annum worse off when compared to the Nurses Award. However, having regard to the Blood Service’s submissions that the entitlement to payment of overtime for working during meal breaks would rarely be accessed because of its practice of not requiring staff to work during meal breaks and that the majority of sites serviced by DMU’s were located within. 50kms of the relevant Donor Centre, I consider that the Unions’ comparison overstates the impact of the less beneficial provisions of the Agreement. Drawing on the Blood Service’s submissions, assuming a return journey of 100kms for travel to a DMU and that an employee was required to travel to a DMU using their own vehicle and seeing that employee have a meal break delayed by one hour each fortnight would see the hypothetical employee better off overall under the Agreement by more than $2,550 per annum 16. Further, I note the Blood Service’s submissions which suggest that employees on occasions travel to a DMU in one of its vehicles as opposed to their own vehicle. Where this is the case, there would be no disadvantage to employees as a result of the absence of the vehicle allowance from the Agreement.
[49] As previously mentioned, the Unions posited that the Agreement failed to recognise some public holidays, e.g. Easter Sunday, and that clauses 27.1–27.3 were impermissible because they were detrimental to an employee when compared to the NES. The Blood Service rejected that contention, submitting that the wording of clause 27 was sufficiently clear to ensure that any gazetted State wide holidays or local holidays in Queensland were observed as public holidays (including Easter Sunday).
[50] Clause 27 of the Agreement provides as follows:
“27.1 All full-time and part-time employees who are rostered to work on the following days shall be allowed as holidays without the induction from pay:
27.2 New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day, Boxing Day, ANZAC Day, Queens Birthday, Local District Holiday and Labour Day or any day gazetted in a particular locality.”
[51] While I note the Blood Service’s submissions, I do not consider clause 27 to be as clear as it contends. To that end, I would require an undertaking to make it clear any other day which is gazetted as a public holiday in Queensland would also be observed under the Agreement. An undertaking to that effect will ensure consistency with the NES and in doing so clarify the operation of the clause.
[52] Further, consistent with the decision in O’Neill v Roy Hill Holdings Pty 17in which Commissioner Williamsdetermined that “an employee “regularly works on Sundays and public holidays” for the purposes of the additional weeks’ annual leave under the NES for shiftworkers if they have worked at least 34 Sundays and 6 public holidays in a year”18, I do not considerthat clause 24.8 of the Agreement is less beneficial when compared to the Nurses Award as was contended by the Unions. By way of background, clause 24.8 of the Agreement entitles those Blood Service employees who work a minimum of 25 or more weekends (either Saturday or Sunday) in any 12 month period to the additional weeks’ annual leave for shiftworkers.
[53] Having regard to all the material before the Commission, the undertakings proffered by the Blood Service and the above analysis and following the approach set out in Beechworth Bakery, I consider that employees would be better off overall under the Agreement. I have come to that conclusion having particular regard to the Agreement’s significant wage differential over the Awards and the other beneficial aspects of the Agreement which in my view outweigh the less beneficial aspects of the Agreement.
Conclusion
[54] For all the above reasons, I am satisfied the Blood Service complied with the various pre-approval steps specified in the Act, that the Agreement was genuinely agreed to by employees, that the group of employees covered by the Agreement was fairly chosen, that the Agreement was signed in accordance with the requirements specified in the Act and Regulations and that taking into account the undertakings proffered by the Blood Service the Agreement passes the BOOT. Subject to receiving the further undertaking set out at paragraph [49] above I am prepared to approve the Agreement. Furthermore, I do not consider that the undertakings proffered or sought by the Commission cause or will cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.
[55] A decision approving the Agreement will be issued once the abovementioned further undertaking is provided in acceptable terms to the Commission.
Appearances:
A. Junkeer and S. Bosse for the Applicant.
K. Crank for the Queensland Nurses and Midwives’ Union and the Australia Nursing and Midwifery Federation.
N. Anglin – Employee Bargaining Representative
E. Bateman – Employee Bargaining Representative
M. Chaffey – Employee Bargaining Representative
J. Hooke – Employee Bargaining Representative
L. McNab – Employee Bargaining Representative
L. Sadler – Employee Bargaining Representative
Telephone Hearing details:
2017.
Canberra and Brisbane:
December 6.
1 MA000034
2 Submission by the Australian Red Cross Blood Service – 5 December 2017 at Attachment 2
3 [2017] FCA1266
4 Ibid at paragraph 103
5 AE410623
6 Submission by the Australian Red Cross Blood Service – 5 December 2017 at Attachment 3
7 [2015] FWC 6627
8 Ibid at [26]
9 Ibid at [32]-[34]
10 Explanatory Statement Select Legislative Instrument 2009 No.300
11 [2016] FWCFB 2222
12 Ibid
13 [2017] FWCFB 1664
14 Ibid at [12]
15 MA000027
16 The Nurses Award does not provide payment for extra travelling time.
17 [2015] FWC 2461
18 Ibid at [35]
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