Australian Red Cross Blood Service AUSTRALIAN RED CROSS BLOOD SERVICE SOUTH AUSTRALIA EMPLOYEE ENTERPRISE AGREEMENT 2011
[2011] FWA 6975
•20 OCTOBER 2011
[2011] FWA 6975 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Red Cross Blood Service
AUSTRALIAN RED CROSS BLOOD SERVICE SOUTH AUSTRALIA EMPLOYEE ENTERPRISE AGREEMENT 2011
(AG2011/12071)Health and welfare services | |
COMMISSIONER HAMPTON | ADELAIDE, 20 OCTOBER 2011 |
Application for approval of an enterprise agreement - application opposed by two unions as bargaining representatives - customised classification structure not consistent with views of certain groups - whether agreement will ensure that employees are better off overall - dispute resolution procedure - whether absence of arbitration consistent with statutory requirement - annual leave for shift workers - whether meets statutory requirement - provisions for part-time employees - whether contradict the NES and/or discriminatory - reservations identified - undertakings proposed by employer - views of bargaining representatives sought and taken into account - undertakings accepted and became term of agreement - approval requirements met - agreement approved.
BACKGROUND
[1] This decision deals with the granting of an application for approval of an enterprise agreement known as the Australian Red Cross Blood Service South Australia Employee Enterprise Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Australian Red Cross Blood Service (the ARCBS). The Agreement is a single-enterprise agreement.
[2] Following a hearing conducted on 22 September 2011, the consideration of supplementary written submissions and the terms of two undertakings provided by the ARCBS, I accepted those undertakings and approved the Agreement on 11 October 2011. 1 In so doing, I indicated I would subsequently issue more detailed reasons for decision, which I now do.
[3] The CPSU, the Community and Public Sector Union (CPSU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being bargaining representatives for the Agreement, each gave notice under s.183 of the Act that they wanted the Agreement to cover them. In accordance with s.201(2) the approval decision noted that the Agreement covers each of the organisations.
[4] The CPSU supported the approval of the Agreement however the AMWU and APESMA both opposed the application on certain grounds that I will outline shortly. The AMWU also made submissions indicating continuing concerns about one of the undertakings made by the employer. 2
[5] One of the undertakings concerned the definition of shiftworkers for the purposes of the National Employment Standards (the NES), which was a matter raised by the Tribunal itself in light of s.196 of the Act. The other undertaking was made in relation to the part-time provisions of the Agreement and sought to clarify the operation of the Agreement in light of the concerns raised by the AMWU and APESMA.
[6] Some of the background to this matter is also set out in my decision dealing with an earlier application by APESMA for a scope order to be made pursuant to s.238 of the Act. APESMA sought to have a scope order made that would have had the effect of removing “medical scientists” from the broader negotiations that were at that time being undertaken by the ARCBS and other parties. Without detailing all of the issues arising in that matter, it included the concerns of APESMA and the AMWU regarding what was said to be the implementation of a national classification framework by the employer. The ARCBS and the CPSU opposed the scope order application.
[7] I declined to grant the scope order application in a decision issued on 25 May 2011. 3
[8] It is of course necessary that the ARCBS as the applicant in this matter satisfy Fair Work Australia that all of the relevant approval requirements of the Act have been met. Leaving aside for the moment the issues raised by the AMWU and APESMA and the shiftwork matter that I have also raised with the parties, having considered all of the statutory approval requirements and am satisfied that all have been met.
[9] This included the process leading to the making of the Agreement, the attainment of genuine agreement with the majority of the employees within the meaning and requirements of the Act, and the statutory form and content requirements. These matters were not contested by any of the parties and have been demonstrated to my satisfaction by the materials before the Tribunal.
[10] In that light, for the purposes of this decision I will outline and deal with the matters raised by the two opposing Unions.
CONSIDERATION OF THE GROUNDS OF OBJECTION AND CONCERNS AS RELIED UPON BY THE AMWU AND APESMA
[11] The two objecting unions in effect raised four grounds of objection or concerns with Fair Work Australia. I will deal with each of these grounds in turn. In so doing, I confirm that the need to demonstrate that the Agreement should be approved remained upon the ARCBS as the applicant employer.
[12] It is however important to note that other than with respect to one issue that was subsequently raised by the AMWU in the context of an undertaking, the AMWU and APESMA accepted that the Agreement met the better off overall requirements established by s.193 of the Act (the BOOT).
[13] It is also important to note that prior to the approval of the Agreement, the parties were subject to the Australian Red Cross Blood Service South Australia Employees Collective Agreement 2007 4 (the 2007 collective agreement). Further, the application was made in the context of the Health Professionals and Support Services Award 2010 (the health professionals award) being the award that covered the employment of all employees for the purposes of the BOOT and the other statutory requirements. This was generally supported by all parties however the AMWU did not formally concede that matter and indicated that the Manufacturing and Associated Industries and Occupations Award 2010 could be applied for this purpose. The AMWU and APESMA did however accept that their concession with respect to the BOOT and their position in terms of the part-time objection applied equally to both awards.
[14] As a result, it is not critical to determine the identity of the safety net award for present purposes, however I would indicate that the health professionals award has sufficient and appropriate scope and all relevant classifications to cover the employment in question (including medical scientists and laboratory technicians) and I have utilised it in assessing this application. I have also had some regard to the alternative award where cited by the AMWU in reaching my conclusions.
The classification framework concerns
[15] The nature of the classification framework concerns is that the framework within the Agreement was said to fail to recognise the scientific expertise, qualifications and profession for the scientific employees, and did not reflect current marketplace values; and was said to be inadequate and subjective when compared to the classification structure of the Manufacturing and Associated Industries and Occupations Award 2010.
[16] I accept that these are legitimate perspectives for the AMWU and APESMA and this factor was one of the significant issues taken into account in the scope order application and decision. These concerns are not shared by the ARCBS or the CPSU and there is no suggestion that the classification framework itself, or the salaries contained within the Agreement, provide less than the modern award at any point, or do not in combination with the package of wages and conditions ensure that the employees are better off overall when compared with the modern award. 5 Indeed, the salaries and conditions within the Agreement are in many respects significantly beneficial.
[17] The classification framework is also workable and capable of being applied in a consistent and objective manner within the ARCBS as part of the overall package. There is also no indication that the classification framework is discriminatory in any relevant sense or would otherwise raise concerns about any of the approval requirements of the Act. Although not an answer in itself, I also note that a similar classification framework has been agreed as part of at least one other enterprise agreement applying to the ARCBS approved by Fair Work Australia. 6
[18] In the end result, provided that all approval requirements have been met, these aspects are largely matters for resolution by bargaining and by genuine agreement between the employer and a valid majority of employees.
The part-time objections
[19] The AMWU and APESMA contended that the part-time employment provisions of the Agreement disadvantage certain employees in comparison with their existing entitlements, provide a lesser benefit than the relevant modern award, offend the NES and is discriminatory.
[20] The relevant part-time provisions of the Agreement are as follows:
“ Part time Employees
10.5 A part time employee is defined as someone who is engaged as such and works less than the full time ordinary hours prescribed in subclause 11.2.
10.6 Hours of part time employees may vary from week to week in accordance with a roster which meets operational requirements. Notwithstanding this, an employee will be appointed to a minimum number of hours per week.
10.7 A part time employee shall accrue leave on a pro rata basis in accordance with actual hours worked.”
[21] Subclause 11.2 of the Agreement states as follows:
- 76 hours within a period of fourteen (14) consecutive days (fortnight) or
- 152 hours within a period not exceeding twenty eight (28) consecutive days (4 weeks).”
“The ordinary hours of work for a full time employee shall be an average of thirty eight (38) hours per week, exclusive of meal times, of either:
[22] Clause 12 is also relevant and provides as follows:
“12 ROSTERS
12.1 The provisions of this clause only apply to persons whose work is scheduled by a roster.
12.2 The ordinary hours of work for each employee shall be displayed in a place conveniently accessible. Wherever possible, rosters shall be displayed two (2) weeks prior to the commencing date of the first working period in the roster.
12.3 Rosters may change subject to operational requirements.
12.4 Where an unexpected roster change is required and involves an employee working on a day which would have been their day off and is not notified at least the day before, such time worked shall be paid in accordance with clause 16 Overtime.”
[23] I will deal with each element of the objections.
[24] The provisions of the Agreement bearing upon this issue are largely reflective of those presently set out in the 2007 collective agreement. To the extent that this might be said to be a relevant consideration, 7 there is no material disadvantage to the employees when considered in isolation and certainly none when the entire packages are both considered.
[25] The part-time provisions do involve a “reduction” on the equivalent provisions of the modern award. In particular, the absence of an established ordinary hours figure (as opposed to a minimum in the Agreement), and the absence of overtime being applied for work above that established figure (as in the award) are factors that bear upon the BOOT and I have considered this as part of the assessment of that statutory criteria. Having regard to the balance of the package, including the level of wages and salaries, leave, hours of work and other conditions compared to the modern award, all employees including the part-time employees are better off overall by the approval of the Agreement as against the modern award. The undertaking given by the employer concerning these employees also bolsters that finding.
[26] The further challenge to the part-time provisions concerns the interaction with the NES and the alleged discriminatory nature of the clauses.
[27] The element of the NES raised by the AMWU and APESMA principally concerns s.62 of the Act which provides as follows:
“62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.”
[28] Section 63 of the Act is related and provides as follows:
“63 Modern awards and enterprise agreements may provide for averaging of hours of work
(1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).”
[29] The issues raised by the AMWU and APESMA are a relevant consideration in light of s.186(2) of the Act which provides in effect that an enterprise agreement cannot be approved if the terms of the agreement would contravene s.55 (which deals with the interaction between the NES and enterprise agreements).
[30] The AMWU and APESMA contended that the part-time provisions of the Agreement do not permit the operation of s.62 in that an employee cannot refuse “additional” hours as the ordinary hours can be modified. This was said to offend the NES and not permit approval of the Agreement. These parties also argued that the effect of the provision would not provide employees with parental and carer responsibilities with the capacity to balance their workplace and family responsibilities as highlighted by the object of the Act set out in s.3(d) concerning the support of ILO Convention 156. 8
[31] The issue concerning the alleged discriminatory nature of the part-time provisions arises due to the approval requirement in s.186(4) of the Act that the agreement not contain unlawful terms. The Act also draws the definition of a discriminatory term into the scope of unlawful for present purposes and s.195 provides relevantly as follows:
“195 Meaning of discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
...”
[32] The AMWU and APESMA contended that the part-time provisions are discriminatory because they create uncertainty for these employees as to their ordinary hours of work and in effect this has a particular impact upon those with family responsibilities. This was said to be discriminatory within the meaning of ILO Convention 111 9 and the Sex Discrimination Act 1984 (Cth) including the concept of indirect discrimination under that Act.
[33] The objecting unions also contended that s.192 of the Act could be applied given that Fair Work Australia may refuse to approve the agreement if it considers that compliance with the terms of the agreement may result in a person committing an offence against a law of the Commonwealth or a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.
[34] The ARCBS contended that the part-time provisions were not inconsistent with the NES and there was nothing in s.62 of the Act that would in any way prevent a variation of ordinary hours as provided within the Agreement. Further, it contended that the organisation utilises fortnightly rosters and the caveat of giving two weeks notice of roster changes “where practicable” referred to the extent of notice and was only to deal with unanticipated circumstances.
[35] In terms of the nature of the provisions, the ARCBS contended that the part-time arrangements were not discriminatory and that they were not unusual. It argued that similar arrangements could be found in a variety of other instruments made under the Act and that the capacity to alter ordinary hours for a part-time employee was an express feature of some modern awards. 10 In relation to the Sex Discrimination Act, the ARCBS referred to the caveat in s.7B that recognised that discrimination would not occur in any event if the condition, requirement or practice was reasonable in the circumstances.
[36] I assume for present purposes that discrimination under the Act includes indirect discrimination. 11 I am also prepared to assume that it is likely employees with family responsibilities are or may be part-time employees under the Agreement.
[37] It is convenient to consider the part-time objection in the context of the undertaking provided by the employer, which was in the following terms:
“2. In relation to clause 10.6 of the Agreement, the Australian Red Cross Blood Service undertakes that, in rostering part-time employees to hours of work which are greater than the employee's minimum number of hours per week, it will have regard to the reasonableness of the additional hours by reference to the matters set out in section 62(3) of the Fair Work Act 2009 (Cth) including (but not limited to) the employee's personal circumstances and any family responsibilities.
[38] In my view, the part-time provisions do not contravene the NES and s.62 in particular. Section 62 is not directed to the establishment of ordinary hours in its own right. Section 63 also directly contemplates ordinary hours being established through an enterprise agreement, including through an averaging process. However, the fact that the provisions within the Agreement mean that in the absence of the undertaking, there would be no express recognition of the factors outlined in s.62(3) of the Act in setting both ordinary and actual hours of work could be a consideration more generally.
[39] I do not consider that the part-time provisions are in themselves discriminatory within the meaning of the Act. They do not provide for the differential treatment of, or disadvantage to, relevant employees on either a direct or indirect basis. Further, compliance with the terms will not require or lead to discriminatory conduct, but in common with many other provisions in industrial instruments, they could be applied in a discriminatory manner. This is not a reason to reject approval of the Agreement and in any event, given the operation of the undertaking in the context of the original provisions, the employer will now need to have regard to the factors outlined in s.62(3) in applying the provision. That is, in effect a reasonableness test has been introduced and this requires consideration of the very factors that could otherwise potentially lead to discriminatory arrangements. Although this does not create an express right to refuse “additional hours”, the obligation to consider those factors, including family or carer’s responsibilities, in establishing the ordinary hours of work does establish or confirm certain relevant workplace rights which are important when considering the present application.
[40] Further, I also note that the undertaking applying to part-time employees has the additional effect of confirming the establishment of minimum hours and rostered ordinary hours for such employees and that these will be relevant for the purposes of s.62 of the Act. In addition, the operation of the Agreement as modified by the undertakings, and the National Employment Standards in that context, will all be subject to the “General Protections” provisions of the Act and the dispute resolution procedures of the Agreement.
The conditions reduction concern
[41] The AMWU and APESMA raised concerns that certain entitlements, including Long Service Leave, Carers Leave, Compassionate Leave and Additional Responsibility allowance would be reduced in comparison with the existing workplace agreement.
[42] There are marginal reductions in these conditions matters when compared to the 2007 collective agreement. However, there is no suggestion that the Agreement provides less leave provisions than those established by the NES and the modern award, and the allowance issue has been considered as part of the BOOT. I should note that some of these provisions within the Agreement, and many other leave arrangements as agreed in that context, remain significantly beneficial to employees when compared to those in the NES and the award.
[43] Given the scheme of the Act, provided that all approval requirements have been met, these matters are also largely issues for resolution by bargaining and by genuine agreement between the employer and a valid majority of employees.
The dispute procedure concern
[44] The final category of concerns related to the nature of the dispute resolution procedure within the Agreement and in particular that it did not empower, in the absence of consent, Fair Work Australia to determine matters.
[45] Without detailing all of the terms of clause 38 Dispute Resolution Procedure of the Agreement, clause 38.16 provides as follows:
“38.16 Where it is agreed between the parties for the FWA to make a binding recommendation to resolve the matter in dispute, the parties commit to providing the FWA with the necessary powers to facilitate this.”
[46] Whilst there is much to be said for a procedure which ensures that Fair Work Australia is given the power to ultimately determine all relevant matters in dispute, the Act does not require that a power to arbitrate must be agreed as part of an enterprise agreement term. This has been dealt with comprehensively by a Full Bench 12 and the meaning of s.186(6) is now clear.
[47] I have considered the full terms of clause 38, including the detailed steps necessary to bring a dispute to Fair Work Australia, and without detailing all of the requirements of s.186(6) I have found that the term complies with the Act.
SHIFTWORKERS AND ANNUAL LEAVE
[48] At the outset of the hearing, I raised with all parties the implications of s.196 of the Act as it applies to the shiftworkers under the Agreement. The Agreement provides additional annual leave for shiftworkers who fall within a definition set out in clause 14.14 of the instrument. The health professional award provides a different definition of shiftworker and it was apparent to me that employees who would be defined as shiftworkers under that award may not be covered by the agreement definition.
[49] Section 196 forms part of the enterprise agreement approval requirements and provides as follows:
“196 Shiftworkers
Application of this section
(1) This section applies if:
(a) an employee is covered by an enterprise agreement; and
(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Shiftworkers and the National Employment Standards
(2) FWA must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.”
[50] In a recent decision 13 I found that this provision meant in effect as follows:
“[32] In circumstances where there are employees who fall within the scope of s.196(1) of the Act, Fair Work Australia must pursuant to s.196(2) be satisfied that the enterprise agreement also defines or treats those employees as being shiftworkers for the purposes of the relevant NES. Unless this is so, the agreement will not meet the relevant approval requirement called up by s.187(4) of the Act. I would add that a provision in an enterprise agreement that also included other employees within the definition of shiftworker for present purposes, or implied the relevant definition by providing the equivalent of the award-based NES leave, would appear to be permissible under s.196 of the Act.”
[51] All parties subsequently agreed to address the concern through an undertaking which had the effect of ensuring that all employees who would be defined as shiftworkers under the award would be entitled to the additional annual leave provided by the NES (s.87).
CONCLUSIONS
[52] The two formal written undertakings given by the employer are appended to the instrument as approved. I sought the views of the bargaining representatives and considered the support of the CPSU for both undertakings and the continuing concerns of the other unions in relation to one of those matters. Having done so, I considered that they were appropriate and fell within the statutory parameters for such undertakings, and I accepted them pursuant to s.190 of the Act. As a result, the undertakings as attached to the agreement as approved are taken to be a term of the Agreement.
[53] Having considered all aspects of the application I was satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval had been met.
[54] The Agreement was approved in a decision issued under the Act and in accordance with s.54 operated from 18 October 2011. The nominal expiry date of the Agreement is 30 June 2014.
COMMISSIONER
Appearances:
I McFetridge of the Australian Red Cross Blood Service.
M Thorpe of the CPSU, the Community and Public Sector Union.
S Fenwick of the Association of Professional Engineers, Scientists and Managers, Australia.
P Bauer of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2011
Adelaide
22 September.
Final written submissions:
2011
29 September, 5 and 7 October.
1 [2011] FWAA 6938
2 Although APESMA did not lodge a submission in relation to the proposed undertakings I have not assumed their support for such given its adoption of the AMWU’s substantive submissions more generally.
3 [2011] FWA 2914
4 This was approved pursuant to the Workplace Relations Act 1996.
5 See the discussion of the BOOT and the scheme of the Act more generally in NTEU v University of Sydney[2011] FWAFB 5163, 10 August 2011 per Harrison SDP, Sams DP and Deegan C.
6 The Australian Red Cross Blood Service New South Wales Enterprise Agreement 2010 (AG2011/5086).
7 See the later discussion about this element.
8 ILO Convention 156 Workers with Family Responsibilities Convention, 1981 - ratified by Australia in 1990.
9 ILO Convention 111 Discrimination (Employment and Occupation) Convention, 1958 - ratified by Australia in 1973.
10 The ARCBS referred to the provisions of the Nurses Award 2010 which it said permits minimum hours to be agreed on employment and for actual ordinary hours to be set by a weekly roster.
11 See the discussion in a similar context by the Full Bench in Shop, Distributive and Allied Employees Association [2011] FWAFB 6251, 14 September 2011, per Lawler VP, Watson SDP and Hampton C at pars [29 ] and [30]. Note that this issue was also not determined in that case.
12 Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464, 26 February 2010, per Giudice J, Acton SDP and Hampton C.
13 Adventists Aged Care Support and Administrative Staff Enterprise Agreement 2011 [2011] FWA 5103, 5 August 2011.
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