Healthe Care (NSW Private Hospitals)

[2017] FWCA 996

[2017] FWCA 996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healthe Care (NSW Private Hospitals)
(AG2016/7064)

HEALTHE CARE (NSW PRIVATE HOSPITALS) HEALTH PROFESSIONALS AND SUPPORT SERVICES ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 27 FEBRUARY 2017

Application for approval of the Healthe Care (NSW Private Hospitals) Health Professionals and Support Services Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Healthe Care (NSW Hospitals) Health Professionals and Support Services Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Healthe Care (NSW Private Hospitals). It is a single enterprise agreement.

[2] It is noted at the outset that clause 37(a) of the Agreement expresses the entitlement to personal leave in hours, rather than days. This is different from the National Employment Standards (“NES”), which expresses the entitlement in days. It is also noted that a Full Bench of the Commission has previously made clear that the references in the NES to a “week” of annual leave, or a “day” of personal/carer’s leave, are to be given their ordinary meaning. 1 As a consequence the reference in the NES to a “week” of leave is to be understood as meaning an authorised absence from the working days falling in a 7 day period, and a “day” of leave means an authorised absence from the working time falling in a 24 hour period.

[3] It follows that an entitlement to leave in an Agreement that is expressed in hours, rather than days, could be “at odds” with the NES requirements if it means employees might receive less than the NES leave entitlement in some circumstances.

[4] However, it is also noted that the Agreement in the present matter contains the following provision in clause 6, “RELATIONSHIP TO THE NATIONAL EMPLOYMENT STANDARDS”:

“Entitlements in accordance with the National Employment Standards (“NES”) are provided for under the Fair Work Act 2009. Where this Agreement also has provisions regarding matters dealt with under the NES and the provisions in the NES set out in the Act are more favourable to an Employee in a particular respect than those provisions, then the NES will prevail in that respect and the provisions dealing with that matter in this Agreement will have no effect in respect of that Employee. The provisions in this Agreement otherwise apply.”

[5] The impact of similar wording was again considered by a Full Bench of the Commission in RACV Road Services Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[2015] FWCFB 8554 (“RACV”) in the context of an Agreement which expressed the annual leave and personal/carer’s leave entitlements in hours rather than days. Clause 4 in the Agreement in that matter indicated in part, “This Agreement operates in conjunction with the National Employment Standards (NES). Certain provisions of this Agreement may supplement the NES but nothing in this Agreement will operate such as to provide a detrimental outcome for employees as compared to an entitlement under the NES.” 2

[6] The Full Bench determined at [17]:

“The effect of clause 4 is that no provision of the Agreement, in its operation, may lead to a result whereby any employee receives less than his or her entitlements under the NES. The practical effect of clause 4 is therefore that RACV must “top up” the entitlement of an employee in any case where there would otherwise be a detrimental outcome when compared to the NES. Therefore, on the annual leave example set out in paragraph [88] of the initial decision and the personal/carer’s leave examples set out in paragraph [89], no shortfall compared to the NES could occur because clause 4 of the Agreement requires RACV to make good any potential shortfall that might arise. There is no exclusion of the NES to which s.56 of the FW Act might apply because clause 4 ensures, as RACV submitted, that the Agreement is “self-correcting” vis-à-vis the NES.” 3

[7] The Full Bench concluded by indicating that it did not intend to prescribe the means by which the RACV ensured that employees receive their NES entitlement in circumstances where the leave entitlement was expressed in hours rather than days. However, clause 4 acted to ensure the entitlement in the NES, expressed in days, was to be provided to employees. It was up to the RACV to take the necessary steps to put in place systems that ensured it complied with this obligation.

[8] In terms of the present matter I am satisfied, in conclusion, that clause 6 of the present Agreement, in a manner consistent with the Full Bench decision in RACV, operates to deal with any issues that might arise in regard to the operation of the personal/carer’s leave provisions in clause 37(a) in terms of compliance with the NES.

[9] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[10] The Agreement is approved and in accordance with s.54 of the Act will operate from 6 March 2017. The nominal expiry date of the Agreement is 1 September 2019.

[11] The Health Services Union New South Wales Branch, being a bargaining representative for the Agreement, has given notice under s.183 that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

COMMISSIONER

 1   [2015] FWCFB 2881.

 2   RACV Roadside Assistance Centre Enterprise Agreement 2014-2017, AE407671.

 3   RACV Road Services Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[2015] FWCFB 8554 at [17].

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