Health Services Union v Scope (Aust) Ltd T/A Scope
[2025] FWC 224
•23 JANUARY 2025
| [2025] FWC 224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Health Services Union
v
Scope (Aust) Ltd T/A Scope
(C2024/6833)
| COMMISSIONER CONNOLLY | MELBOURNE, 23 JANUARY 2025 |
Alleged dispute about any matters arising under the enterprise agreement
Introduction
On 26 September 2024, an application was lodged by the Health Services Union (HACSU or the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 10 of the Scope Enterprise Agreement 2019 (the Agreement). The Respondent in this matter is Scope (Aust) Ltd T/A Scope, the employer covered by the Agreement.
The Agreement was approved by the Commission on 3 December 2019.[1] On 4 October 2024, the Commission approved a replacement agreement to the Scope Enterprise Agreement 2019, known as the Scope Enterprise Agreement 2024.[2] The HACSU is covered by the Agreement and acts for employees covered by the Agreement.
The dispute was allocated to my Chambers on 30 September 2024. I have convened a series of conciliation conference between the parties since this time in order to resolve the dispute.
During these conferences, Ms Macks appeared for the Applicant. Ms Jarman and Mr Miller represented the Respondent. Ms Macks was consistently joined by members working for the Respondent at each conciliation conference.
Through the course of conciliation, the parties have been able to reach an agreement to resolve the matters of dispute between them.
The purpose of this decision is to record this agreement of the parties as a binding decision of the Commission, as provided for by Clause 10 of the Agreement.
Legislation
The parties sought the exercise of the Commission’s arbitral powers under s.739 of the Act. Section 739(4) relevantly provides;
“(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”
The relevant Dispute Resolution Procedure is contained in clause 10 of the Agreement. Relevantly clauses 10.1, 10.7(b) and (d) provide:
10.1 If a dispute relates to:
(a)a matter arising under the Agreement; or
(b) the NES.
this clause sets out procedures to settle the dispute.
…
10.7
…
(b) If the dispute is not resolved after the first stage, the Commission may arbitrate the dispute and make a determination that is binding on the parties. In arbitrating the dispute the Commission may exercise all procedural powers available to it under the FW Act.
…
(d) The parties agree to be bound by any decision and/or determination of the Commission made in accordance with this clause, including any decision on appeal.
Background
HACSU contended that Scope have failed to comply with its obligations under the 2019 Agreement to reconcile and review employees receiving an annualised salary under clause 19 to ensure they are not being paid less than they would otherwise be paid. And that employees performing work as coordinators under the Agreement are entitled to be paid overtime for work over 40 hours a week, including in accordance with clause 29.4 (Recall to Work Overtime), rostered and non-rostered on-call work.
Scope acknowledges that its requirement to reconcile and review employees’ earnings on annualised salary arrangements has been inadequate. They maintain that employees working as coordinators are required to complete time and attendance records. Scope do not accept HACSU’s interpretation of the terms of the 2019 Agreement. However, they accept there is confusion regarding its obligations to employees performing work as coordinators with respect of on-call work, and work beyond ordinary rostered hours.
It is accepted that HACSU and its members have raised a dispute about the application of the 2019 Agreement in accordance with the requirements of clause 10. This included during bargaining for the 2024 Agreement, where the terms and conditions applying to coordinators was discussed. It is accepted and not in dispute, that these and other discussions failed to resolve the dispute.
It is also accepted that the parties have confirmed and clarified new terms, conditions and arrangements to apply to coordinators under the 2024 Agreement. These terms have been further clarified through the course of the conciliation process between the parties following the filing of this dispute application.
The parties agree that the preliminary requirements of clause 10 of the Agreement have been met and the powers of the FWC to mediate or otherwise arbitrate under the Agreement are enlivened.
Both parties have expressed the wish for the Commission to assist with determining the matters of dispute. Through conciliation the parties have identified an agreed position consistent with the facts and circumstances before the Commission.
Agreement of the Parties
Considering their respective positions and submissions on 20 December 2024, my Chambers received an agreed joint position of the parties as set out in Table 1 and Table 2 below.
Table 1
| C2024/6833 - Health Services Union (051V) v Scope (Aust) Ltd T/A Scope | |
| Payment per weekend day (Fri, Sat, Sun) and PH rostered on call. | $252.08 |
| Total per weekend on call (Fri, Sat, Sun) | $756.24 Public holidays are to be paid separately to the weekend even where they are worked consecutively with a weekend (i.e. where a public holiday falls on a Monday and the Coordinator is required to be on-call on the weekend and that Monday, payment for x4 days will apply, i.e. $1,008.32 total for that period). |
| How is this applied? | Individually for each Coordinator based on weekends and public holidays on which the Coordinator was required to be on-call. (Excludes periods of leave) |
| Time window applied | Applied retrospectively for the life of the Scope Enterprise Agreement 2019 which is 10 December 2019 – 10 October 2024(Period of 4 years 10 months), offset with any backpay that has already been processed specifically for weekend and PH oncall for this period. (For clarity – wage increase back payments are not included) |
| Payment date | 29 January 2025, with $1500 paid in advance (offset against final payment) before Christmas to Coordinators who have been in the role for 6+ years (providing offer is accepted by 13th Dec, allowing time for the data to be submitted to payroll in line with Xmas cut-off) |
| Includes | All current employees who have worked as a Coordinator at Scope at any time during the time window, and who were required to be on-call on a weekend or public holiday at any time during the time window. A ‘Coordinator’ includes a Coordinator of any service or program (such as – but not limited to – House Coordinator; Short Term or Respite Accommodation Coordinator; Day Program Coordinator/Day Therapy Coordinator/Coordinator for Lifestyle Solutions, however titled). A ‘Coordinator’ also includes an ‘Acting Coordinator’. For the avoidance of doubt, if a current Scope Employee has ceased working as a Coordinator but still works for Scope in another role, they are eligible to receive payment with respect to the period that they were a Coordinator. |
| Does not include | (a)Coordinators who have left Scope (i.e. former employees) will not receive any payment under the settlement agreement. The settlement agreement will not cover those persons at all or seek to waive any rights on behalf of those persons. (b)Superannuation will not be paid on top of the payments that form part of the settlement. (c) Interest will not be paid on top of the payments that form part of the settlement. |
| Conditional terms | |
| Employees will be required to keep time records of all hours worked, including ordinary hours, overtime, and remote recall. Scope will ensure adequate record keeping mechanisms are in place to fulfil their obligations under Scope Enterprise Agreement 2024, the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). | |
Table 2
| Review of hours worked by Scope Coordinators | |
| Summary | Scope will review its existing rostering practices in relation to on-call work and propose a solution that meets its obligations under Clause 26.3. This process will be treated as a major change and will follow the consultation requirements outlined in the Agreement. Scope is committed to providing HACSU with written updates on the progress of this matter, aiming to put this forward a proposal by 31 March 2024. |
| What will happen in the interim during the review | Scope will offer an additional day of TOIL to coordinators who are rostered on-call for the weekend (Sat and Sun) (in addition to the current arrangement). This will mean a total of 2 days TOIL. If only 1 day (Sat or Sun) is rostered on-call then the employee will receive 1 day of TOIL. If an employee is on leave instead of working on-call, they not entitled to receive the TOIL that they did not perform on call. No additional days of TOIL will be given for being rostered on call for Public Holidays as employees are already receiving 4 days off duty in the fortnight in accordance with clause 26.3 If a day of TOIL is not able to be used within the fortnight, it will be recorded in their TOIL balance and should be utilised within 28 days. The provision of this TOIL will be considered Scope meeting its obligations under 26.3 whilst the review takes place, regardless of whether the TOIL is taken within same fortnight in which it was accrued. For clarity, this means that overtime rates are not payable if the 4 days break is not taken in the fortnight (but instead TOIL is kept for later use). Where an employee performs work whilst on call (including remote work) they will not be required to commence their shift until a 10-hour break has been taken, without loss of pay. If they are instructed to resume rostered work without this break, they will be paid at a rate of 200% (or 250% on a PH) until such break is given |
| Scope agrees to the following steps proposed by HACSU | As part of the review Scope is to consult with Coordinators, other affected employees, HACSU, union delegates and HSRs. All such parties must be invited to give their views, provided relevant information about the review and genuine consideration will be made to the feedback provided. The outcome of the review must also be shared with all such parties. When proposing any changes to rosters, Scope will consider the matters listed at 26.5 of the Agreement. Scope’s OHS team will participate in the review and will complete a risk assessment of any proposed changes. Scope will identify when fatigue is a hazard in the workplace and use a risk management approach to prevent fatigue. Copies of risk assessments completed in conjunction with this review will be provided to HACSU. Scope is to make every endeavour to ensure there is progress made on the review between update meetings and that this is then communicated through the updates. Starting in January 2025, Scope will convene monthly meetings with affected employees, HACSU, delegates and HSRs for the purpose of consultation and providing updates about the review. Scope will invite meeting attendees to nominate agenda items and will provide the agenda at least 24 hours before the meeting. Where appropriate, a dispute about the review will be managed in accordance with the dispute resolution procedure in clause 10 of the Scope Enterprise Agreement 2024. |
Consideration
I have considered the above submissions agreed by the parties as set out in Table 1 and Table 2 above.
I am satisfied that the parties have reached an agreement to settle the matters of dispute between them about the payment of on-call and non-rostered work to employees working as coordinators under the 2019 Agreement.
Accordingly, I determine that the details set out in Table 1 and Table 2 in paragraph [15] above records the settlement of this dispute.
I note that the terms agreed by the parties set out in Table 2 related to the terms of the 2024 Agreement that are beyond the scope of this dispute and this decision.
In the event there is any dispute or ongoing lack of clarity regarding the terms of the 2024 Agreement, the parties may make a further application to the Commission pursuant to the terms of this Agreement.
I have determined the resolution of this dispute as set out above. A consent order will be issued with this decision [PR783634].
COMMISSIONER
[1] AE506305.
[2] AE526315.
Printed by authority of the Commonwealth Government Printer
<PR783625>
0
0
0