Bupa Care Services Pty Ltd
[2010] FWA 16
•5 JANUARY 2010
Note: An appeal pursuant to s.604 (C2010/2624) was lodged against this decision - refer to Full Bench decision dated 15 April 2010 [[2010] FWAFB 2762] for result of appeal.
[2010] FWA 16 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/19926)
COMMISSIONER SMITH | MELBOURNE, 5 JANUARY 2010 |
Bupa Care Services, ANF and HSU Enterprise Agreement 2009 – preferred hours – approval refused.
[1] An agreement titled “BUPA Care Services ANF and HSUA Enterprise Agreement 2009” has been lodged for approval. The proposed agreement will cover approximately 1600 employees. The parties to the agreement are:
Bupa Services Pty Ltd (BUPA)
Health Services Union Victoria No 1 Branch (HSUA)
Australian Nursing Federation (Vic Branch) (ANF)
[2] With the exception of one matter, I am satisfied that in all other respects the agreement can be approved consistent with the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. That matter relates to the following clause of the proposed agreement:
33.8 Preferred hours arrangements
33.8.1 An employee may wish to work additional hours at particular times or on a continuous basis or during particular roster periods due to personal circumstances. Examples of personal circumstances are family and/or carer’s responsibilities and/or financial circumstances, but may also include other situations.
33.8.2 An employee may at his or her initiative advise the employer in writing of the additional hours of work that he or she wishes to be rostered to work across the available shifts (at any of the employer’s facilities covered by this agreement), but it is not compulsory for an employee to do so. Where an employee requests to work additional hours on an available shift, the employer will endeavour to roster the employee to work on that shift.
33.8.3 Where an employee requests to work additional hours on an available shift at any of the employer’s facilities covered by this agreement, the employee will be paid at their ordinary hourly rate of pay (plus any additional shift penalties). In such circumstances, overtime payments will not be applicable. Further, there is to be an adequate break between periods of work that are the subject of an arrangement covered by this subclause.
33.8.4 Where the employer requests or requires an employee to work additional hours, this time will be paid at normal overtime rates. The operation of this subclause is not intended to undermine any historical overtime arrangement(s) requested or required by the employer.
33.8.5 An employee may give written notice to change his or her preferred hours arrangements, or cease a preferred hours arrangement and revert to the ordinary spread of hours under the agreement at any time. Unless otherwise agreed, this change will take effect from the next roster to be posted.
33.8.6 The operation of this subclause shall be trialled and then reviewed by the persons covered by this Agreement after 6 months in operation. Should any issue raised in that review process not be resolved, it may be referred to FWA in accordance with the dispute resolution procedure in clause 41 of this agreement.
[3] It can be seen that this clause has at its core, the removal of overtime payments where a person indicates that they would prefer to work hours which would normally attract overtime. The time worked would be paid for at ordinary rates. The clause is premised on a voluntary act by the employee and the process will be monitored by the parties to the agreement.
[4] It is worth noting at this stage that the overwhelming majority of employees to be covered by this agreement are women who work part-time. I also note that this is the aged care sector where reliance on government funding is high.
[5] During submissions it was made clear that, in the event that there was a difference of view about the success or otherwise of the operation of the clause, then Fair Work Australia (FWA) is empowered by the parties to arbitrate its continuation or otherwise. The only issue of concern to the ANF was fatigue management. BUPA also made it plain that additional ordinary hours would be counted for superannuation and leave accruals.
[6] Given that this agreement must be assessed against the no-disadvantage test, it is appropriate to examine how that had been applied by the Australian Industrial Relations Commission. A review of those decisions for the purpose of this matter distils the following:
- The no-disadvantage test is an objective test.1
- The no-disadvantage test is a global one and not a line by line examination.2
- Meeting the no-disadvantage test in a particular case is largely a matter for the impression and judgement of the Commission member.3
- The Commission should not exercise a value judgement on what it believes is an appropriate minimum or maximum standard for agreement making.4
- Any diminution of widely established rights of employees should be carefully scrutinised with a view to preventing modification or undermining of community standards.5
[7] In support of the agreement BUPA submitted that the clause was unlike some other clauses in agreements which FWA had found that the approach failed the no disadvantage test6 and that there was a trial period to test the operation of the new clause. In addition, it was submitted that the clause was in similar terms to the one which previously covered the South Australian operation of Amity Group Pty Ltd7. BUPA further submitted that the clause was not intended to take away overtime opportunities for employees and that the operation of the previous clause saw an increase in overtime being worked.
[8] Both the ANF and HSUA supported the Agreement in its present terms.
[9] In considering the application of the no disadvantage test there are a number of factors which are relevant.
[10] The first is whether or not the clause can be objectively tested. In my view the operation of this clause presents some difficulty. For its operation, the clause depends upon what a person may or may not want. In one sense it can be objectively tested: did the person want to work for ordinary rates which would other wise attract overtime or didn’t they?
[11] The clause is portrayed as being a benefit to employees. However, there is clear disadvantage when compared to the award because that person would have ordinarily received overtime for the hours worked. The benefit is said to derive from the fact that an employee will get work that they might not have otherwise been given. The no disadvantage is then said to arise from the fact that by picking the hours an employee wants to work, that is a benefit and the trade-off is that the work is performed at ordinary rates. This however is a subjective test. FWA is being asked to accept that a person believes they are better off because they get work at a rate below the safety net. The same could be said of a person who would offer for work at an amount below the minimum wage thereby giving themselves a cost and competitive edge against a person who wishes to relay upon the safety net. The concept could apply to public holidays and shift loadings. A good example may be a nurse who prefers night shift because of family responsibilities. In those circumstances it could also be argued that the act of volunteering eliminated the need for the loading.
[12] For the concept to be acceptable, it must rely upon the subjective belief of the employee rather than the objective testing of the award against the agreement.
[13] This is clearly an approach which undermines the standards fixed in awards and the basis for determining the no disadvantage test.
[14] The next issue is that it may have the potential to undermine the operation of the National Employment Standards (NES). In effect, the proposition can extend the concept of a 38 hour week. This is particularly evident in the current matter. There are 1200 employees who are categorised as support staff for which the Health and Allied Services – Private Sector – Victoria Consolidated Award 1998 [AP783872] is said to be the reference instrument. That award provides that a part time employee: works less than full-time hours of 38 per week (or less than 76 hours in a fortnight)8 Already the employer can roster a person under the current award clause without incurring any overtime. There is no inhibition to an agreement being reached to work for nearly a full week within the span of hours without attracting overtime.
[15] The Nurses (Victorian Health Services) Award 2000 [AP790805] has a similar provision: A part-time employee is one who is employed and who is ready, willing and available to work on a regular basis any number of hours up to but not exceeding 38 hours in any one week (or 76 in a fortnight) provided that the number of hours worked may vary from week to week by mutual agreement.9
[16] The example given by BUPA that some employees have two jobs during the week and would prefer to only have one which was extended so as to avoid a higher tax rate on the second job, can be achieved under the award as it stands. The issue boils down to an employee who would work more than 38 hours per week and outside the spread of hours. This is why it could be seen to undermine the intention of the NES. Whilst, on one view, there is no compulsion to work more then 38 ordinary hours per week (without averaging), the proposed provision perhaps undermines the concept of 38 ordinary hours. If the provision is used to “encourage” employees to volunteer to work those hours so that overtime costs are avoided then it does work more strongly against the concept of a 38 hour week.
[17] Against this background, it can be seen that this proposed clause represents a cost saving rather than a benefit. It would be difficult to suggest that an employee would see the benefit in being paid less than that which would ordinarily apply. In short, it is the gift of employment that the employer is offering provided it is at a discounted rate from the safety net. This is a concept which, in my view, has far reaching implications for the operation of the safety net of wages and conditions.
[18] Finally, the question is whether or not, on balance, the benefits contained in the proposed agreement mean that the no disadvantage test is satisfied? I do not doubt that the parties have negotiated an agreement which in some cases is superior to the underpinning reference instruments.
[19] However, in my view, the issue in this area of employment is so fundamental to the operation of the safety net and the NES that the agreement must be rejected as failing the no disadvantage test.
[20] I decline to approve the agreement.
Appearances:
B Gee, Solicitor, Fisher Cartwright Berriman for Bupa Care Services Pty Ltd.
L Kelly for Australian Nursing Federation.
E McClay with R Muratore for Health Services Union
Hearing details:
2009.
Melbourne:
December 21.
COMMISSIONER
1 MSA Security Officers Certified Agreement [2003] per Watson SDP, Blain DP & Lewin C PR 937654 – 15 September 2003. Blain DP dissented but not on this point.
2 Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430.
3 Ibid at 457.
4 AGC Certified Agreement 1999 ( Giudice J, Marsh SDP & Harrison C 3 February 2000 S2344)
5 Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430 at 457..
6 Café Yaringa Pty Ltd T/A Café Yaringa per Whelan C [2009] FWA 1388
7 The predecessor organisation of Bupa. The agreement was approved by the Workplace Authority.
8 See clause 14.2.1
9 See clause 30.2.1
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