Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology
[2023] FWC 240
•20 FEBRUARY 2023
| [2023] FWC 240 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Jones Holding Co Pty Ltd T/A Jones Radiology
(C2022/8398)
| COMMISSIONER PLATT | ADELAIDE, 20 FEBRUARY 2023 |
Alleged dispute about any matters arising under the Health Professionals and Support Services Award 2020 and the NES
On 21 December 2022, the Health Services Union (HSU) lodged a dispute under s.739 of the Fair Work Act 2009 (the Act) concerning the reasonableness of its member (Ms Jodie Blenkiron) being asked to work additional hours for her employer, Jones Holding Co Pty Ltd T/A Jones Radiology.
The matter was subject to a conference on 5 January 2023. Mr Jason Grills represented the Applicant, whilst the Respondent was represented by Mr Chris Wood. Ms Blenkiron’s employment is covered by the Health Professionals and Support Services Award 2020 (the 2020 Award). Clause 36 of the 2020 Award sets out the dispute resolution procedure:
36. Dispute resolution
36.1 Clause 36 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
36.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
36.3 If the dispute is not resolved through discussion as mentioned in clause 36.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
36.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 36.2 and 36.3, a party to the dispute may refer it to the Fair Work Commission.
36.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
36.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
I am satisfied that the Applicant complied with clauses 36.2 and 36.3 of the 2020 Award such that the matter could be referred to the Commission. At the conference on 5 January 2023, the Respondent confirmed that it did not provide its consent to the Commission arbitrating the dispute. At the conclusion of the conference on 5 January 2023, the parties were given further opportunity to resolve the dispute outside of the Commission.
A further conference was convened on 13 January 2023. The parties were unable to resolve the dispute at the conference. At the conclusion of the conference, I informed the parties that I would issue a recommendation in relation to the dispute. Both parties were given the opportunity to provide further written submissions as to the content of my recommendation. Further materials were provided by both parties.
The following summary is based on the information provided by the parties.
Ms Blenkiron contends that she has been employed by the Respondent for approximately 14 years. I am not aware of the basis of Ms Blenkiron’s employment prior to 2009.
On 19 September 2008, Ms Blenkiron was offered full-time employment by the Respondent as a Medical Imaging Technologist. Ms Blenkiron accepted the written offer on 15 September 2008, and the contract applied from 5 January 2009. The contract of employment refers to application of the “Technical Award”.
The Health Professional and Support Services Award 2010 (the 2010 Award)[1] was made on 3 April 2009. There does not appear to be any dispute that the work performed by Ms Blenkiron falls under the 2010 Award. Clause 10 of that Award provides as follows:
10. Types of employment
10.1 Employment categories
(a) Employees under this award will be employed in one of the following categories:
(i)full-time;
(ii)part-time; or
(iii)casual.
(b) At the time of engagement an employer will inform each employee whether they are employed on a full-time, part-time or casual basis. An employer may direct an employee to carry out such duties that are within the limits of the employee’s skill, competence and training, consistent with the respective classification.
10.2 Full-time employment
A full-time employee is one who is engaged to work 38 hours per week or an average of 38 hours per week pursuant to clause 23—Ordinary hours of work of this award.
10.3 Part-time employment
(a) A part-time employee is an employee who is engaged to work less than the full-time hours of an average of 38 hours per week and who has reasonably predictable hours of work.
(b) Before commencing employment, the employer and employee 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.
(c) The terms of the agreement may be varied by agreement and recorded in writing.
(d) The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.
10.4 Casual employment
(a) A casual employee is an employee engaged as such on an hourly basis, other than as a part-time, full-time or fixed-term employee, to work up to and including 38 ordinary hours per week.
(b) A casual employee will be paid per hour calculated at the rate of 1/38thof the weekly rate appropriate to the employee’s classification. In addition, a loading of 25% of that rate will be paid instead of the paid leave entitlements of full-time employees.
(c) The minimum period of engagement of a casual employee is three hours with the exception of cleaners employed in private medical practices who will be engaged for a minimum of two hours.
At the time the 2010 Award was made it covered Ms Blenkiron. Unless there was an enterprise agreement in place (of which there is no evidence) the 2010 Award also applied. The Respondent’s representative asserts that because Ms Blenkiron was employed prior to the making of the 2010 Award it did not apply to her. This position is, respectfully, ill-informed.
Of particular relevance in this matter is the requirement of clause 10.3(b) of the 2010 Award, that is, the requirement for agreement in writing on a regular pattern of work including the number of hours to be worked each week, the days which will be worked and the starting and finishing times each day.
On 5 September 2010, Ms Blenkiron and the Respondent agreed in writing to vary the contract of employment. The written offer dated 30 August 2010 refers to Ms Blenkiron continuing in her role as a radiographer at the existing location. It is not clear if that is a different role to a Medical Imaging Technologist, but nothing turns of that issue. The key changes in employment arrangements were that the role was now a part-time role of 60 hours per fortnight and there was an express reference to the application of the 2010 Award in the absence of any other industrial instrument. The offer did not identify the hours to be worked or the days of the week on which those hours were to be worked. It appears to me that the Respondent did not comply with the requirements of Clause 10.3 of the 2010 Award. The transition to part-time employment occurred post the application of the 2010 Award. The Respondent’s assertion that Ms Blenkiron’s employment (as a part-time employee) occurred prior to the introduction of the 2010 Award, and thus Clause 10.2 does not apply, is plainly incorrect. The Respondent appears to have breached s.45 of the Act, which is a civil remedy provision.
The establishment of the days of the week and starting and finishing times of the agreed hours of work is an important requirement, as it determines inter alia when (in the absence of an agreed variation to the contract of employment) overtime might be payable in accordance with clause 28.1(d) of the 2010 Award.
The 2020 Award replaced the 2010 Award on 30 April 2020. At this point, in accordance with her contract, the 2020 Award applied to Ms Blenkiron’s employment.
Clause 10 of the 2020 Award states the following:
10. Part-time employees
10.1 A part-time employee:
(a) is engaged to work less than an average of 38 hours per week; and
(b) has reasonably predictable hours of work.
10.2 Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the:
(a) number of hours to be worked each week;
(b) days of the week the employee will work; and
(c) starting and finishing times each day.
10.3 The terms of the agreement in clause 10.2 may be varied by agreement and recorded in writing.
On 16 August 2022, Ms Blenkiron and the Respondent agreed to vary the contract of employment such that the hours to be worked were 45 hours per week plus reasonable additional hours. In addition, the following clause was added:
“From time to time the Employer may offer you extra shifts in addition to your ordinary hours of work set out above, or you may request additional shifts. In either case, acceptance by you of these additional shifts will included acceptance by you that your ordinary hours for that week will be varied to include the additional shifts and they will be paid at your ordinary rate of pay. Overtime rates will only be paid if you work in excess of 37.5 hours per week (averaged fortnightly) or 7.5 hours per day.”
It appears that the variation agreed on 16 August 2022 is also deficient with respect to the requirements of Clause 10.2 of the 2020 Award. If this is correct, then the Respondent may have again breached s.45 of the Act. Of concern is that I have been advised that the Respondent engages over 100 part-time employees on a similar basis.
The substance of the dispute before me is the reasonableness of the Respondent allocating weekend shifts to Ms Blenkiron owing to her personal circumstances.
Ms Blenkiron has not made any request for flexible working arrangements under the National Employment Standards.
The reasonableness of the weekend rosters would normally be evaluated in accordance with the criteria in s.62(3) of the Act, as reproduced below:
62. Maximum weekly hours
Maximum weekly hours of work
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i)38 hours; and
(ii)the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3)In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a)any risk to employee health and safety from working the additional hours;
(b)the employee's personal circumstances, including family responsibilities
(c)the needs of the workplace or enterprise in which the employee is employed;
(d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of his or her intention to refuse to work the additional hours;
(g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h)the nature of the employee's role, and the employee's level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j)any other relevant matter.
The difficulty is this matter is the lack of definition about the hours of work under the existing part-time employment contract.
In addition, it appears (as a result of the 16 August 2022 variation) that any additional shifts offered by the Respondent must be agreed. If the additional shifts were not agreed, it would appear that overtime rates would be payable pursuant to clause 25.1(d) of the 2020 Award even if the 37.5 threshold had not been met.
The Applicant is aware of its capacity to test these matters in the Federal Court. Obviously, such and application would put the Respondent at risk of civil penalty and an underpayment of wages claim for similarly impacted employees which could date back up to six years.
Recommendation
I provided the Respondent an opportunity to seek legal advice. With respect, the submissions made on the Respondent’s behalf do not appear to reflect such a course having been taken.
In order to facilitate the resolution of this matter, I recommend that the Respondent and Ms Blenkiron agree and record in writing the days of the week, and the starting and finishing times that the 45 hours per fortnight under her part-time contract of employment are to be worked.
The parties should then consider what the additional shift requirements are and assess whether they are reasonable or not in accordance with s.62(3) of the Act. This would include consideration of the application of overtime and/or penalty provisions.
If the parties require further assistance in resolving the dispute, they should contact my Chambers not later than 1 March 2023. Absence any contact by this time, the matter will be closed.
COMMISSIONER
[1] MA000027, PR986368
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