Australian Red Cross Society T/A Australian Red Cross Lifeblood

[2020] FWCA 5474

[2020] FWCA 5474

FAIR WORK COMMISSION

DECISION

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

Australian Red Cross Society T/A Australian Red Cross Lifeblood
(AG2020/2781)

AUSTRALIAN RED CROSS LIFEBLOOD DONOR CENTRE AND NURSING QUEENSLAND ENTERPRISE AGREEMENT 2020

Health and welfare services
COMMISSIONER SPENCER	BRISBANE, 19 NOVEMBER 2020

Application for approval of the Australian Red Cross Lifeblood Donor Centre and Nursing Queensland Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood Donor Centre and Nursing Queensland Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Red Cross Society T/A Australian Red Cross Lifeblood (the Applicant). The Agreement is a single enterprise agreement.

[2] A number of matters were identified, and responses and undertakings sought from the Employer. The Applicant provided responses and undertakings on 9 October 2020. The views of the Queensland Nurses and Midwives’ Union (the QNMU) as a branch of the Australian Nursing and Midwifery Federation (the ANMF) and the Australian Municipal, Administrative, Clerical and Services Union (the ASU), being bargaining representative for the Agreements, and Ms Dianne Bradeley and Ms Naomi Anglin, employee bargaining representatives for the Agreement, were sought regarding the responses and undertakings.

[3] On 16 October 2020, the QNMU sent correspondence to my Chambers raising a number of issues in relation to the undertakings provided by the Applicant, as well as leave provisions under the Agreement. The primary concern of the QNMU nursing employees working as shiftworkers would be entitled to either one or two weeks less annual leave than they would be entitled to under the Award, being an entitlement to four or five weeks of annual leave under the Agreement as opposed to six or seven weeks of annual leave under the Award. The ASU advised my Chambers that they did not seek to raise any further concerns but agreed with the issues raised by the QNMU. On 16 October 2020, the Applicant responded to these further concerns.

[4] On 21 October 2020, my Associate wrote to the parties and asked that the QNMU provide a response to the Applicant’s further response by 23 October 2020. No response was forthcoming. Further correspondence was sent to the QNMU on 28 October 2020 requesting the ANMF confirm whether they pressed their objections by 29 October 2020. The objection was pressed and the Applicant provided a further amended undertaking on 30 October 2020.

[5] The QNMU provided a further response to the amended undertakings pressed their objection to the Agreement. The QNMU submitted that despite the undertakings, the Agreement and the undertakings as provided by the Applicant would have the effect that nursing employees are entitled to one week less of annual leave compared to under the Nurses Award 2010.

[6] The QNMU submitted that the Applicant’s claim about an average percentage by which base wages in the Agreement are higher than the Award is irrelevant because the BOOT is not a test for a group of employees, or a test across employees. The QNMU argued that the BOOT is a test for each individual employee, and if one employee who would be covered by the Agreement will not be better-off-overall under the Agreement than under the Award, the Agreement would fail the BOOT, even if some calculation of average amounts across all wage rates in the Agreement shows some benefit of the Agreement.

[7] The QNMU submitted that an agreement cannot pass the BOOT unless the employee who would benefit the least from the Agreement, compared to the Award, will nonetheless be better off overall under it than under their Award. The QNMU argued that there is not sufficient evidence before the Commission that could enable it to be satisfied that the employee who would benefit the least from the Agreement, compared to the Award, will nonetheless be better off overall under it than under their Award.

[8] The Applicant submitted that the QNMU’s bargaining claims during the negotiation process included a claim for an additional week of leave, from 4 weeks in the previous agreement to 5 weeks. The Applicant submitted that it did not agree to the claim and the majority of employees who voted on the agreement were in favour of the Agreement. The Applicant submitted that the annual leave entitlement was contained in the predecessor agreement Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2017 and approved by the Fair Work Commission on 21 March 2018 (where the BOOT test was also assessed by the Commission).

[9] The Applicant provided a comparative review document in its supporting documentation upon filing the application for approval of the Agreement. In the comparative review document, the Applicant identified that under the Agreement, employees would receive a lesser entitlement to annual leave than they would under the Award, but that the Agreement rates of pay were higher and thus provided for a better outcome for employees:

“Employees receive 4 weeks annual leave per annum. The Award provides all employees with 5 weeks.

Additional week of annual leave approx. 1.9% of Award hourly rate. The Agreement rates are on average 58% higher than the Award rates and therefore, overall, provide for a better outcome for employees.” 1

[10] The Applicant submitted that as the Agreement rates of pay are significantly higher than the award minimum rates of pay, the Agreement provides a better off overall outcome for each employee when compared to the Award. The Applicant submitted it had calculated that the additional week of annual leave for an employee is equivalent to approximately an additional 1.9% of the Award hourly rate on each hour worked, depending on the classification, and therefore the higher agreement rate of pay for all hours adequately compensates employees for an additional week of annual leave.

[11] I am satisfied that employees receive significantly higher rates of pay on average under the Agreement than the Award. BOOT modelling indicates that the lowest rates of pay for nursing employees are 22.01% above the Award, and rates of pay for Support Service employees are at their lowest 7.91% above the Award.

[12] The Applicant’s modelling in relation to the reduced annual leave entitlement was put to the unions and the unions did not advance an argument that the Agreement failed the BOOT in relation to this entitlement.

[13] I am satisfied that the effect of the clause was clearly set out to employees, during the access period, and that employees were aware of the effect of the clause. The clause is substantially the same as the previous agreement as submitted by the Applicant. I am satisfied the higher rates of pay under the Agreement for all hours worked compensate employees for any disadvantage to employees by their reduced entitlement to annual leave.

[14] I note that the Applicant provided further undertakings in relation to the Agreement. I further note that neither union raised any issues with these undertakings, and only raised concerns regarding the undertaking in relation to shiftworkers and annual leave.

[15] Matters concerning personal leave were raised with the Applicant. However, noting Clause 7.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[16] Regarding the additional undertakings provided, I note that under the Agreement, Clause 41 of the Agreement states that representative is allowed after Step 2 of the grievance procedure, not at all stages. There is no limit on when representation is provided under the Act at Section 186(6). The undertaking provided removing the words ‘from Step 2 Onwards’ addresses this issue.

[17] The Agreement at clause 10 does not provide a span of hours. Clause 14 provides that overtime is paid outside ordinary hours provided in clause 10 – hours of work. Under the Award at clause 24, employees receive overtime in excess of their ordinary hours which includes the span of hours. The Applicant provided an undertaking providing an entitlement to overtime for staff working in the Support and Customer Service Job family in either Grade 1 or 2 who is not receiving a penalty under Clause 13. I consider the undertaking addresses this issue.

[18] Clause 10.3 of the Agreement provides a minimum engagement period for all employees (except for part time employees where the part time minimum engagement would apply) but does not refer to casual employees. The Applicant gave an undertaking specifically providing that the four hour minimum engagement period applies to casual employees. I consider the undertaking remedies this issue.

[19] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. I am further satisfied that the undertakings given do not result in substantial change to the Agreement pursuant to s.190 of the Act, nor do they cause any financial detriment to any employee covered by the Agreement, and as such are capable of being accepted.

[20] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[21] The ANMF and ASU have given notice under s.183 of the Act, that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the ANMF and the ASU.

[22]
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 November 2020. The nominal expiry date of the Agreement is 31 January 2023.

COMMISSIONER

Annexure A.

 1   Form F18 Application – Attachment 2A at page 17

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