Clifford Hallam Healthcare Pty Ltd
[2024] FWCA 2304
•20 JUNE 2024
| [2024] FWCA 2304 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Clifford Hallam Healthcare Pty Ltd
(AG2024/1772)
CLIFFORD HWALLAM HEALTHCARE BERESFIELD ENTERPRISE AGREEMENT 2024
| Pharmaceutical industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 20 JUNE 2024 |
Application for approval of the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Clifford Hallam Healthcare Beresfield Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Clifford Hallam Healthcare Pty Ltd. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant Award is the Pharmaceutical Industry Award 2020, which is expressly excluded. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission must, in accordance with s 193A(3), give consideration to any views expressed by the employer or a bargaining representative for the agreement.
I raised several matters with the applicant which in my view required a response before I could be satisfied that the BOOT is met. The applicant submits that whilst the Agreement contains individual elements that, when considered on a line-by-line basis, are less generous than their equivalent entitlement under the Award, the Agreement contains a range of significant benefits, most notably its minimum base rates which are, on average, at least 25% above the equivalent minimum base rates under the Award. The applicant further indicates that the higher rates are applied to each financial element under the Agreement (including overtime rates, penalty rates and allowances) and that when considered together with all other elements on a global basis, result in the relevant employees being better off overall.
Those matters included the payment of overtime to part time employees and whether, depending on the frequency of additional hours worked, some employees may not be better off. The applicant explained that the additional ordinary hours are capped both on a daily and weekly basis and that part time employees receive overtime rates of pay where they work additional hours beyond 38 hours per week (as provided for at clause 7.2(b)). The applicant further explained that working additional hours at ordinary hourly rates requires the part-time employee to specifically agree to this arrangement and that the extra hours must be agreed to on each occasion and prior to the commencement of the work noting that absent agreement, the part-time employee is entitled to overtime at applicable overtime rates (as provided for at clauses 7.2(b) and (c)). Additionally, if the part-time employee agrees to work continuous extra hours, the applicant indicated that the arrangement is to be reviewed no later than three months from commencement (as provided for at clause 7.2(c)). The applicant submits that the clause is intended to operate in a way to provide for an alternate, optional method by which the employer and a part-time employee can agree to vary the working hours for a particular week on a short term basis only.
Another matter raised was in respect to whether the Agreement which is silent on the part time employees’ safeguard provided for at clause 10.2 of the Award on variations to hours and notice to changes to days worked may result in any disadvantage to employees. The applicant set out a range of other more beneficial terms in the Agreement that in its view offset any detriment associated with the less prescriptive requirements for the setting of part-time working hours and provide appropriate safeguards to a part-time employee’s regular pattern of work. Firstly, the Applicant explained that the Agreement provides that part time hours are to be “fixed on a regular weekly basis” (as provided for at clause 7.2(a)). In addition, clause 7.2(f) and 16.2(c) of the Agreement when read together require fixed times for commencing and ceasing work, noting that such patterns cannot be altered without at least seven days’ notice (or by agreement). The Applicant referred to various other safeguards including the right for employees to object to roster changes, in which case CH2 is required to provide 14 days’ notice in writing of any such changes, during which the dispute resolution clause may be utilised to resolve any disputes (as provided for at clauses 7.2(f) and 16.2(c)).
Additionally, the Applicant submits that employees will gain a number of other benefits under the Agreement, including guaranteed hours (20 per week unless otherwise agreed to suit an employee’s personal circumstances) (as provided for at 7.2(a)), longer minimum engagement periods per shift (4 hours v 3 hours under the PIA) (as provided for at cl.7.2(e)), a specific mechanism to transition to full-time employment and to request full-time roles (as provided for at clause 7.2(h) and (i)) and additional overtime triggers compared to the Award (e.g. when they work in excess of 5 days per week or 38 ordinary hours per week or outside the spread of ordinary hours for day workers) (as provided for at cl. 20.9).
A further matter raised was in respect to shift workers and whether the rates of pay may in some circumstances fall below Award rates. The concern raised went to rates of pay not appearing to be high enough to compensate certain classifications and hours worked if less than 5 afternoon shifts are worked. In response the applicant submits that although the Award provides for a 150% loading for non-successive night shifts, because the minimum base rates of pay under the Agreement are significantly higher than the equivalent minimum rates under the Award (on average at least 25% above the corresponding Award minimum rates), employees would still receive a higher amount for working a night shift under the Agreement than they would for working a non-successive night shift under the Award. The Applicant provided the example that for a Grade 2 employee they are entitled to an ordinary hourly rate of $24.87 under the Award and a rate of $37.31 for working a non-successive night shift (150%) and under the Agreement, a Grade 2 employee (Level 2) would be entitled to an ordinary hourly rate of $32.97 and would receive $42.86 per hour for working a night shift (30%).
A final concern was raised in respect to clause 20.6 of the Agreement appearing to be silent on some of the TOIL safeguards found at clause 19.5 of the Award such as receiving a payout at overtime rates. In response the applicant indicated that the Agreement requires TOIL to be agreed, provides for one hour of TOIL for each hour of overtime worked, and for TOIL to be paid out at overtime rates at the expiry of 12 months or on termination of employment. The applicant submits that this provides sufficient safeguards for employees seeking to access TOIL, noting this is at an employee’s election only.
The applicant also set out a range of other more beneficial terms in the Agreement that in its view offset any detriment associated with not being afforded all the safeguards under the Award and provide appropriate safeguards. For example, the applicant pointed to benefits such as higher overtime penalty rates on Sundays (250% v 200% under the Award) (as provided for at clause 20.2(c)) and for public holidays (300% on Good Friday and Christmas Day v 250% under the Award) (as provided for at cl. 20.2(d)), additional overtime triggers for part-time employees (e.g. when they work in excess of 5 days per week or 38 ordinary hours per week or outside the spread of ordinary hours for day workers) (as provided for at cl. 20.9)).
The Shop, Distributive and Allied Employees’ Association (SDA), which was a bargaining representative for the Agreement, indicated that it is of the view that the Agreement meets the BOOT for several reasons. The SDA submitted these benefits include the voluntary work protection where the working hours arrangement can only be implemented by agreement, minimum rates of pay which are higher than the Award and other beneficial entitlements pertaining to minimum weekly hours of work for part-time employees, minimum shifts for part time and casual employees, higher casual loading and site rates for labour hire.
Making a global assessment and given the explanations provided by the applicant and the SDA, having regard to s.193A(3) and having regard to the types of employment and patterns of work of the employees covered by the Agreement for the purposes of s. 193(6), I am satisfied that the BOOT is met. I note that should the work patterns, kinds of work or types of employment under the Agreement change, an application under s.227A is available for a reconsideration of the BOOT.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the explanations set out above and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
The SDA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement was approved on 20 June 2024, and, in accordance with s.54, will operate from 27 June 2024. The nominal expiry date of the Agreement at clause 2.1 is 1 October 2027.
DEPUTY PRESIDENT
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