Healthscope Operations Pty Ltd T/A Healthscope

[2021] FWCA 130

[2021] FWCA 130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope
(AG2020/3717)

HEALTHSCOPE QUEENSLAND CLERICAL SERVICES EMPLOYEE AGREEMENT 2019-2022

Health and welfare services
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 JANUARY 2021

Application for approval of the Healthscope Queensland Clerical Services Employee Agreement 2019-2022.

Background

[1] Healthscope Operations Pty Ltd T/A Healthscope (Healthscope) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Healthscope Queensland Clerical Services Employee Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is single enterprise agreement.

[2] The Commission corresponded with Healthscope raising a number of concerns about the terms of the Agreement including clause 14.3(e) which provides that part-time employees can work agreed additional hours and be paid for those hours at ordinary rates. The Australian Municipal, Administrative, Clerical and Services Union Queensland Together Branch (AMACSU), a bargaining representative for the Agreement, took issue with Healthscope’s Form F17 Declaration that the Agreement passed the better off overall test (BOOT) in respect of part-time employees on the basis of clause 14.3 of the Agreement.

[3] A hearing was conducted on 5 January 2021. AMACSU was represented by its Industrial Advocate, Ms Angela May and Healthscope was represented by Mr Ricky Plummer, Workplace Relations Advisor. At the conclusion of the hearing I indicated a provisional view that undertakings canvased with the parties at the hearing addressed matters of concern identified by the Commission and that the Agreement passed the BOOT with respect to part-time employees.

[4] AMACSU was provided with a further period to consider whether it wished to maintain its position in relation to the manner in which the Agreement deals with part time employees. The Union subsequently advised that while it continued to hold the view that the Health Professionals and Support Services Award 2020 (the Award) does not allow ordinary hours for part-time employees to be increased on an ad hoc basis, the Union accepts that notwithstanding that the Agreement provides for this, it passes the BOOT on the basis of other benefits provided by the Agreement and the undertakings offered by Healthscope.

[5] After considering the undertakings provided by Healthscope and the submissions of AMACSU, I have decided to confirm my provisional view that the Agreement passes the BOOT and to approve it. These are my reasons for reaching this conclusion.

Part time employment issue

[6] Clause 14.3 of the Agreement is in the following terms:

“14.3 Part-time employment

(a) Healthscope may employ a part-time employee in any classification in the

Agreement.

(b) A part-time employee is a person who:

(i) works less than full-time hours of thirty-eight (38) per week (or less than seventy-six (76) hours in a fortnight);

(ii) has reasonably predictable hours of work; and

(iii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

(c) Before commencing employment, Healthscope and the employee will agree in writing on the agreed minimum number of ordinary hours to be worked per week during the working cycle permitted by clause 24 – Span of hours of this Agreement.

(d) The terms of the agreement referred to in clause 14.3(c) above may be varied by agreement and recorded in writing.

(e) Where additional hours are available, Healthscope will attempt to offer extra work to part-time employees, provided that:

(i) additional hours are paid at the ordinary rate of pay; and

(ii) Healthscope is able to offer sufficient hours to casual staff to ensure that a necessary pool of casual employees is attracted and retained.

(f) A part-time employee must agree to working additional hours (over and above the agreed minimum number of ordinary hours) in any week, fortnight or month than before working those hours. By way of clarification, an agreement includes Healthscope recording additional hours in an electronic or paper based time and attendance system and the part-time employee attending for work or remaining at work for the additional hours. Healthscope will maintain time and attendance records for recording purposes. Where an agreement to work extra hours exists, then these hours will be paid at the ordinary time rate of pay (subject to the application of any penalty for work outside the spread of hours). Provided that all time worked by a part-time employee which are in excess of the rostered daily ordinary hours of work prescribed in this Agreement, or the ordinary hours of work averaged over a fortnight, per clause 14.3(b)(i) above, will be paid at the applicable overtime rates prescribed by this Agreement.

(g) Any hours worked by the part-time employee, by mutual agreement above the agreed minimum number of ordinary hours, and paid at the ordinary time rates of pay, will count towards the accrual of annual leave, long service leave and personal leave.

(h) Outside an agreement as described in clause 14.3(f) of this Agreement, no part-time employee will be directed to work, at ordinary time rates of pay, above the employee’s agreed minimum number of ordinary hours.

(i) Part-time employees shall be paid at an hourly rate equal to 1/38th of the weekly wage appropriate to the employee’s classification. Employees employed under this clause shall accrue paid leave entitlements on a pro rata basis.

(j) The minimum period of engagement of a part-time employee per shift is three (3) hours.

(k) Where a part-time employee has worked regularly above their base ordinary hours consistently for twelve or more months, then the Employee may request Healthscope in writing to consider modifying the base number of ordinary hours. Where Healthscope assesses that there is an operational capacity to change base ordinary hours, then this may result in a written agreement between the parties. Healthscope will not unreasonably refuse a request made by a part-time employee under this clause to vary their agreed pattern of work.”

[7] The provisions the subject of concern are found in clause 14.3(f) of the Agreement. The Award provides as follows in relation to part time employment:

“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.”

[8] The Award also provides at clause 24.1(b) that overtime is payable to part-time employees in the following circumstances:

(b) Where a part-time employee:

i. works in excess of their ordinary hours, except where agreement has been reached in accordance with clauses 10.3; and/or
ii. works in excess of 10 hours per shift; and/or
iii. works in excess of an average of 38 hours per week in a fortnight or 4 week period.

[9] AMACSU contends that the Award provisions in relation to part-time employment do not allow agreements in relation to the matters in clause 10.2 of the Award to be varied on an ad hoc basis. AMACSU also contends that if the Agreement was approved, part-time employees would never be paid overtime and provided an example whereby a part-time employee who works 30 hours per week, 6 hours over five days, may be asked to work 3 hours extra on any of those days under the Agreement would not be paid overtime because the employee “agreed” to work the extra hours, and it is not more than a 10 hour shift.

[10] Healthscope contends that the Award at clause 24.1(b)(i) provides for a part time employee to work additional hours above the employee’s contracted ordinary hours at the ordinary rate of pay, subject to there being an agreement reached pursuant to clause 10.3. In effect, a part time employee under the relevant modern award will receive payment for additional hours at the ordinary rate of pay in these circumstances. Healthscope submits that the proposed agreement is no different in that sense as it too provides that additional hours will be paid at the ordinary rate of pay subject to the parties reaching an agreement to vary the ordinary hours of work.

[11] In relation to the example provided by AMACSU, Healthscope agrees with the union in the sense that a part time employee may never receive overtime in the circumstances where the employee agrees to vary their ordinary hours on a regular basis (assuming the hours worked remain within the limits of maximum ordinary / weekly hours). Healthscope also submits that this is entirely consistent with the terms of the Award. Further, Healthscope submits that the additional hours would only be worked by agreement.

[12] At the hearing, I raised with Healthscope issues in relation to the recording of agreements to work additional hours. In response, Healthscope provided an undertaking in relation to the documentation of all agreements by part-time employees to work additional hours including ad hoc arrangements. An undertaking was also provided to clarify that part-time employees who enter into agreements to work additional hours, the effect that part-time employees would be entitled to overtime in accordance with the Agreement where a part time employee works in excess of 10 hours of any given day or in excess of an average of 76 hours per week in a fortnightly period.

[13] AMACSU has informed the Commission that while it disagrees with the Applicant’s interpretation of clause 10.3 of the Award, it accepts that the undertaking in relation to the issue of part-time employees working additional hours and other benefits the Agreement provides, result in part-time employees being better off overall under the Agreement compared to the Award.

[14] It is well established that the personal preferences of employees to work particular hours are not relevant for the purposes of deciding whether an agreement passes the BOOT. 1 What is required is that the Commission undertake a comparison between a relevant award and an agreement and be satisfied that on a global basis, employees are better off overall under the agreement than they would be under the award. In the present case, I am satisfied that this is so, regardless of how clause 10.3 of the Award applies.

[15] While it is not necessary that I reach a view on the proper construction of clause 10.3 of the Award, I make the following observations relevant to my conclusion that the Agreement passes the BOOT. On the one hand, clause 10.3 of the Award does not specify the minimum or maximum term of an agreement reached between a part-time employee and an employer in relation to hours of work. Neither does the Award specify the circumstances in which such an agreement can be reached and varied. Rather, the Award requires that any agreement made pursuant to clause 10.3 of the Award is evidenced in writing. On the other hand, the intent of clause 10 of the Award generally, is that part-time employees have reasonably predictable hours of work and work a regular pattern of hours. It is arguably inconsistent with that intent that hours of work for part-time employees are subject to change on an ad hoc basis.

[16] The undertakings offered by Healthscope provide protection to part-time employees by requiring that all changes to agreements in relation to part-time hours of work are recorded in writing. Further, the undertakings ensure that the parameters for part-time employees to receive overtime are clear. I have also had regard to the fact that the Agreement provides that part-time employees cannot be directed to work additional hours. Finally, I have had regard to the fact that all employees are paid an amount above the Award ranging from 7.5% to 75.8%. For these reasons I am satisfied that part-time employees are better off overall under the Agreement than they would be under the Award and the Agreement passes the BOOT in relation to part-time employees.

Consideration

[17] In addition to the issue in relation to part-time employees, a BOOT concern was raised with the Applicant in relation to the minimum engagement period for casual employees. An undertaking was provided in relation to this matter. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[18] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[19] I observe that the following provisions may be inconsistent with the National Employment Standards (NES):

•  Clause 37.2 Substitution of public holidays; and

•  Clause 37.8(a) “50% rule” - Payment for a public holiday.

[20] However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[21] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[22] AMACSU has given notice under s.183 of the Act that the organisation wants to be covered by the Agreement. In accordance with s.201(2) of the Act, and based on the declaration provided, I note that the Agreement covers this organisation.

[23] Subject to the Undertakings, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[24] The Agreement is approved in accordance with s.54 of the Act and will operate from 22 January 2021. The nominal expiry date of the Agreement is 30 September 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   Bupa Care Services Pty Ltd [2010] FWAFB 2762.