Bupa Care Services Pty Ltd - [2010] FWA 16

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

FAIR WORK AUSTRALIA

DECISION

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

Bupa Care Services Pty Ltd
(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 16
Decision Date: 5 JANUARY 2010

CaseChat Overview and Summary

In the case of Bupa Care Services Pty Ltd, the respondent sought a declaration from the Fair Work Commission that it was not bound to observe certain terms and conditions of the ANF and HSU Enterprise Agreement 2009. The dispute centred on the interpretation of the agreement's provisions regarding preferred hours. Specifically, the employer argued that it was not obligated to offer preferred hours as stipulated in the agreement, whereas the applicant contended that the employer was required to provide such hours under the agreement.

The legal issues before the court involved the interpretation of the enterprise agreement's terms concerning preferred hours and the employer's obligations under the agreement. The court had to determine whether the employer was bound to offer preferred hours as per the agreement and if the employer's refusal to approve such hours was justified. The applicant argued that the employer had failed to properly consider the request for preferred hours, which was a breach of the agreement. The employer, on the other hand, contended that the agreement did not mandate the provision of preferred hours and that the refusal to approve them was within the scope of its contractual rights.

The court found that the enterprise agreement did not impose a binding obligation on the employer to offer preferred hours. The terms of the agreement, when read as a whole, did not compel the employer to provide preferred hours. The court also noted that the employer had not acted unreasonably in refusing the request for preferred hours, as the refusal was in accordance with the agreement's provisions. Consequently, the employer's decision to refuse the approval of preferred hours was deemed lawful, and the applicant's claim for a declaration was dismissed.

The court's decision concluded that the employer was not bound to offer preferred hours under the terms of the enterprise agreement. The employer's refusal to approve the preferred hours was found to be consistent with the agreement, and no declaration was granted in favour of the applicant. The court's ruling affirmed that the employer's actions in this matter were in line with the contractual obligations set out in the ANF and HSU Enterprise Agreement 2009.

Orders