Australian Workers’ Union v Elderly Care Limited
[2024] FWC 722
•22 MARCH 2024
| [2024] FWC 722 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union
v
Elderly Care Limited
(C2023/7669)
| COMMISSIONER HUNT | BRISBANE, 22 MARCH 2024 |
Alleged dispute about any matters arising under the modern award and the NES; [s146]
On 11 December 2023, the Australian Workers’ Union (AWU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 31 of the Nurses Award 2020 (Nurses Award) and clause 9 of the Aged Care Award 2010 (Aged Care Award). The dispute relates to the AWU’s members employed at Elderly Care Limited (Elderly Care) at its Bundaberg Tricare Facility (the Facility).
The Aged Care Award provides that part-time employees will agree in writing on a regular pattern of work, including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. Any agreed variation to the hours of work will be in writing. If there is no variation, hours worked in addition to the agreed hours will be paid at overtime rates.
The Nurses Award provides that before commencing part-time employment, the employer and employee will agree in writing to the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours. The terms of the agreement may be varied by agreement and recorded in writing. Similarly, if there is no variation, hours worked in addition to the agreed hours will be paid at overtime rates.
In 2023, Elderly Care offered Individual Flexibility Agreements (IFAs) to employees at the Facility who are covered by the Nurses Award and the Aged Care Award. The IFA was offered to allow part-time employees to agree to a variation of hours; with the agreement being able to be met verbally, in writing or by conduct.
The predominant effect of the IFAs is to permit part-time employees to bid for shifts in addition to their ordinary shifts, where the additional work performed by the part-time employees will be paid at ordinary rates of pay up to 38 hours per week, instead of at overtime rates as required by the two awards.
In a Q&A document issued to employees by Elderly Care, employees were informed that the benefits of signing an IFA could include swapping a Wednesday shift for a Friday shift because of an appointment on the Wednesday. Additionally, it would allow employees to vary their hours of work in a fortnight, depending on their personal circumstances. Employees were informed that there is no requirement to sign an IFA, and employees should only sign it if they believed it would benefit them and help their circumstances. It was stated:
“Any decision to sign or not sign an IFA will not impact your employment terms or contracted work schedule.”
In correspondence to the AWU in December 2023, Ms Davida Webb, Aged Care Manager stated:
“The Individual Flexibility Arrangements (IFAs) available to Elderly Care employees, are completely at the employee’s choice and discretion whether to enter an IFA. There is no pressure put on any Elderly Care employee to sign an IFA…”
I convened a telephone conference of the parties on 10 January 2024. I informed Elderly Care that I held genuine concerns as to whether employees who had executed an IFA, which would authorise Elderly Care to pay part-time employees at the ordinary rate of pay for all hours of work up to 38 hours per week could be better off, as required by the respective individual flexibility arrangements clauses in the awards.
A further in-person conference was convened before me on 24 January 2024, with a video-link to permit Mr Bronson Thomas, Organiser, to participate. On the day of the conference, the AWU filed and served a series of text messages sent by ‘Nashelle’, an administration officer to employees on 4 August 2023, with one of those messages as follows:
“Good afternoon, just a message to everyone to let you know that if you wish to pick up extra shifts you must sign a flexibility agreement. These need to be done by Wednesday 10/08/2023. If you have not signed one you will not be allowed to pick up any extra shifts. If you have any questions, please don’t hesitate to ask. Thank you Nashelle”
In November 2023, another administration officer, ‘Charlene’, was chasing up IFAs from employees by texting them as follows:
“Hi team, can I please ask that all IFAs please be signed and returned to me by Thursday morning. If you have not yet picked yours up, please pick one up from reception and log it out and in when you return it on my clip board.
Please make sure pages 3 and 5 are completed correctly. There are 2 different ones, one for nurses and one for the rest of staff so please double check you have picked up the right one.
Please return to my black tray behind the counter if I’m not at reception.
Thank you
Charlene”
On 1 December 2023, Charlene sent the following text message:
“Hi Team,
Please may I have all IFA’s completed and returned by today!!
If you haven’t picked one up I am happy to email you a copy that you can email back to me.
Please remember to sign yours back in on my clip board and put them in the black tray on my desk.
Thank you all so much for your help in this matter.
Cheers
Charlene”
At the conference on 24 January 2024, Elderly Care said that the text message sent by Nashelle to employees was ‘unfortunate’. She is no longer employed by Elderly Care.
Elderly Care stated that it has rolled out IFAs at all of its 16 facilities in Queensland.
In discussions during the conference, it became clear to me that only employees who had signed an IFA to permit hours of work up to 38 per week to be paid at ordinary time, instead of overtime pursuant to the awards, were granted additional shifts under the shift bidding system. I provided strong opinions to Elderly Care as to how I considered that to be potentially unlawful having regard to:
·The IFA clauses in the awards requiring that an agreement is one that is genuinely made without coercion or duress;
·The IFA clauses in the awards must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made;
·The significantly high number of non-English speaking background employees employed by Elderly Care as nurses and aged care workers;
·The provision in the awards for overtime above agreed part-time hours; and
·The general protection provisions of the Act.
On 14 February 2023, Elderly Care shared data that demonstrates across its Queensland facilities, 95% of aged care workers have signed an IFA, while 80% of its nurses have signed an IFA.
Elderly Care proposed to convene meetings with employees at the Facility to further explain IFAs, and permit employees to terminate their IFAs, if they wished.
A further in-person conference, with video link to Mr Thomas was held on 19 February 2024. Following the conference, Elderly Care amended its proposed communication strategy to employees at the Facility. Elderly Care proposed to send information to affected employees, including the following:
“If you sign the IFA, a replacement shift or additional shift you agree to work will form part of your ordinary hours of work and you will be paid your ordinary hourly rate. You will still be paid overtime rates if you work more than 10 hours in a day or 76 hours over a fortnight but the overtime rates under the Award for working a shift outside of your rostered ordinary hours will not apply.
If you do not have an IFA in place and accept a shift via the shift bidding system, this will still count as an agreement in writing to vary your ordinary hours of work and the additional shift will be paid at your ordinary hourly rate. Employees who do not sign the IFA can still request to swap shifts but they must have a written agreement with Elderly Care on each occasion for this to be approved. Employees without an IFA will otherwise be entitled to be paid overtime rates if they are required to work shifts in addition to their usual roster and do not have a written agreement with Elderly Care to work the additional shift at ordinary time.”
The Q&A to employees proposed to inform them that if they decided not to sign an IFA, Elderly Care is not obliged to offer them overtime and they will not be rostered to work overtime. Employees who do not sign an IFA can bid for shifts, and acceptance of a shift will count as written agreement to vary the ordinary hours of work, with payment at ordinary time.
In considering this proposed communication, I still held concerns that Elderly Care was going to pay to part-time employees, whether they had signed an IFA or not, ordinary rates of pay if they bid for and were accepted to work extra shifts via the shift bidding system. Under Elderly Care’s proposal, part-time employees could only ever receive overtime rates (for work up to 38 hours per week) if they were required to work shifts in addition to their usual roster and did not have a written agreement in place.
It should be noted that employees at the Facility do not receive significant over-award payments.
On 29 February 2024, the AWU urged the Commission to issue a recommendation to the following effect:
a.if an employee does not sign an IFA that they should not be unfairly treated with regards to overtime, and the IFAs should not be utilised by Elderly Care;
b.that should there be any unfair treatment for an employee not signing an IFA, the employee involved may have rights to file a General Protections application;
c.if the employee signs the IFA and the same is contested, the employer could be exposed to a wage claim regarding the underpayment of overtime in terms of potentially not meeting the standards of being better off overall; and
d.if Elderly Care is inclined to increase its flexibility regarding the award, then they should proceed with bargaining.
On 12 March 2024, Elderly Care advised that it has made a commercial decision to terminate all IFAs for all aged care staff and nurses to the extent that they relate to the variation of an employee’s ordinary hours of work. It proposed to stop accepting new IFAs from employees by 31 March 2024, notify the cancellation of all IFAs on 7 April 2024, with cancellation to take effect on 7 July 2024. If an individual employee requested to shorten the termination period, it would genuinely be considered.
Elderly Care stated that it intended to move towards a centralised rostering practice where all vacant and unrostered shifts will be filled through its shift bidding process. If a part-time employee bids for the shift, this will be considered a variation in writing to their ordinary hours of work for that fortnight and the shift will be paid at ordinary time rates (except where they have worked more than 38 hours in a week or shift penalties otherwise apply).
On 18 March 2024, I informed the parties that I considered Elderly Care’s proposal to consider a request to work extra hours by part-time employees to be a variation under the relevant awards to be wholly unsatisfactory, and I was considering making a recommendation. On 19 March 2024, Elderly Care communicated that it considered that the Commission making a recommendation was unnecessary.
There is no doubt that the requirement within many awards to pay part-time employees overtime rates for work performed above their contracted hours (where a written agreement is not entered into) is an expensive proposition. The provisions affect employers across many industries and act as a deterrent to offering increased hours of work to part-time employees.
However, the award provisions have been in place since 2010, and there are ways and means to overcome the high cost of additional hours for part-time employees. One is to enter into a genuine agreement with employees to vary their hours of ordinary work. Another way is to collectively bargain, providing greater entitlements than the relevant awards, and when the better off overall test is considered against all of the terms of the awards, demonstrating how those clauses should be considered when over-award payments are made.
In my view, and absent the ability to arbitrate this dispute given Elderly Care has not agreed to consent arbitration, as required by the awards’ dispute resolution clauses, it is highly improper for Elderly Care’s employees at the Facility to receive the ordinary time rate of pay whenever they bid for and are accepted to work additional shifts.
To-date, employees have inexplicably been told that they must sign an IFA, agreeing to ordinary time rates of pay in order to bid for additional shifts. On the face of it, it would appear to me to be unlawful and unconscionable. This conduct is exacerbated by the demographics of the employees, a largely migrant workforce.
Now that this matter has been addressed, I do not consider Elderly Care’s response to the issue to be any improvement on the matter. Elderly Care proposes that employees who bid for additional work will be paid at ordinary rates of pay whether they agree to it or not. Elderly Care considers the very act of an employee seeking additional hours and using the only technology available to them to obtain additional hours is a form of agreement to vary their individual hours of work, resulting in ordinary rates of pay.
As I pointed out during one of the in-person conferences with the parties, an industrially-intelligent employee, perhaps a member of the AWU, might say to Elderly Care that they do wish to work hours in addition to their part-time hours, and receive payment at overtime rates as per the award. To-date, such an employee who had not signed an IFA would not be offered work, and going forward, it would seem, would not be offered work unless they confirmed that they understood any shift bidding through the electronic system would be acceptance of a variation in writing, with payment at ordinary rates of pay. It is, distastefully, a like it or lump it scenario. Under Elderly Care’s arrangements, the employee could not achieve additional hours at overtime rates of pay.
I recommend the following:
(a)Elderly Care distribute this Recommendation to all affected employees across Queensland;
(b)Affected employees are welcome to communicate in writing to my chambers: [email protected] their thoughts on the dispute;
(c)Elderly Care seek to terminate all IFAs promptly, and if an employee requests a prompt termination, Elderly Care action it;
(d)Elderly Care communicate in writing with affected employees every two months to confirm the part-time hours and days of work with each employee, and how many additional hours or shifts the part-time employee might anticipate or expect to work if the additional shifts were to be paid at ordinary rates of pay. A part-time employee might wish to limit such shifts to, for example, one per week, with any additional shifts to be paid at overtime rates of pay. Any such variation would therefore be in writing and limited to a cap of additional hours the part-time employee is prepared to work without the payment of overtime;
(e)Elderly Care should undertake to its affected employees that they will not be adversely affected if they do not agree to vary their part-time hours of work.
A further conference will be convened on a date to be advised where the Commission will continue to assist the parties in mediation, conciliation, and in making any further recommendations or expressing an opinion.
COMMISSIONER
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