Healthscope Operations Pty Ltd T/A Healthscope

[2018] FWCA 7805

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Healthscope Operations Pty Ltd T/A Healthscope

(AG2018/5661)

Healthscope - Tasmania - Non-Nursing Employees - Enterprise Agreement - 2018

Health and welfare services
Deputy President Masson	MELBOURNE, 21 DECEMBER 2018

Application for approval of the Healthscope - Tasmania - Non-Nursing Employees - Enterprise Agreement - 2018.

An application has been made for approval of the Healthscope -Tasmania – Non – Nursing Employees – Enterprise Agreement – 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Healthscope Operations Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

A notice of employee representational rights (NERR) was provided to employees on 26 July 2018[1] and the notice complied with the regulations.[2] Employees were provided with access to the proposed Agreement and information about the effect of the terms of the Agreement along with a notice of the time and place and method of voting was provided to employees on 5 September 2018. Voting occurred in the period 24 to 30 September 2018 and a majority of those who voted approved the Agreement.[3]

The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant awards for the purpose of the better off overall test (BOOT) were the Health Professionals and Support Services Award 2010[4](the Award) and the Hospitals Award (Tasmania)[5] (the Pre-reform Award).

The statutory declaration noted that some of the provisions in the proposed Agreement were more beneficial than the Award or were not conferred by the Award. Some less beneficial terms were also identified.

The Health Services Union (the HSU) filed a statutory declaration on 23 October 2018 August 2017, in which they supported approval of the Agreement. In doing so, however, the HSU identified less beneficial terms that were relevant for the purpose of the Commission’s consideration of whether the Agreement satisfied the BOOT.

In reviewing the Agreement for approval, the Fair Work Commission (the Commission) identified a number of issues in relation to the Agreement and supporting documentation. These included pre-approval requirements, National Employment Standards (NES) compliance and BOOT assessment considerations. The Commission wrote to the Applicant on 23 October 2018 and identified a number of issues including:

(1)No Form F18 –Statutory Declaration had been received from the HSU;
(2)Clarification was sought as to whether bargaining had been formally recommenced following the withdrawal of an earlier agreement approval application as this had implications for the date of issuing of the NERR on 28 July 2018.
(3)Evidence of when employees were notified of the ballot details was sought.
(4)The dispute resolution term at Clause 11 limited the rights of employee representation to that of only the union.
(5)The consultation term at Clause 13 did not allow for employee representation other than by the union.
(6)A number of BOOT concerns were raised including the following potentially less beneficial provisions in the Agreement:

· Span of hours provisions; and
· Supported wages.

In addition to the matters raised by the Commission, the HSU also raised concerns in their Form F18 regarding less beneficial provisions. The concerns raised were that:

(1)Clause 19 of the Agreement which deals with part-time employees’ hours of work and entitlements did not provide for the same level of precision, certainty and entitlements as the relevant Award provisions.

The Applicant provided submissions and undertakings in correspondence to the Commission on 23 and 30 October and 9 November 2018 which sought to address the matters raised by the Commission.

The HSU pressed their concern that Clause 19 was less beneficial and a conference of the parties was conducted on 20 November 2018. At the conclusion of the conference, the Applicant undertook to consider the matters raised by the HSU and foreshadowed that it would seek to provide a revised undertaking to the Commission to address the HSU concerns.

The Applicant subsequently provided revised undertakings on 10 December 2018 to the Commission and indicated that it did not seek to be heard further and requested that the application be now determined on the papers. The HSU also advised the Commission on 10 December 2018 that it did not wish to be heard further; were content for the application to be determined on the papers; supported the Agreement’s approval; and noted that assessment of the BOOT issues raised by the HSU in their Form F18 was a matter for the Commission.

I now turn to consider the BOOT issues raised by the HSU, having been satisfied that the other issues raised with the Applicant by the Commission had been adequately addressed in earlier submissions and undertakings proffered by the Applicant.

HSU BOOT Issues

In their Form F18 and during the course of the conference conducted on 20 November 2018, the HSU detailed particular concerns they held regarding provisions in the Agreement. Those concerns can be summarised as follows:

(i)Clause 19(e) of the Agreement deals with the agreement that the employer and part-time employee will enter into prior to the employee commencing employment and covers span of hours, variation of rosters and agreed minimum hours. The HSU contend that the clause does not provide the same level of precision and certainty regarding part-time employees as the Awards do with respect to hours of work;

(ii)Clause 19(h) of the Agreement details the means by which a part-time employee agrees to work additional hours at ordinary time rates of pay beyond their contracted hours of work. The HSU contend that unlike the Awards where written agreement is required in advance of the additional rostered hours, the Agreement allows the employer to roster a part-time employee for additional hours without discussion or agreement;

(iii)Clause 22 of the Agreement prescribes a higher duties provision that is less beneficial than the Award;

(iv)Clause 31(d) of the Agreement prescribes an overtime meal supply or meal allowance benefit that is less beneficial than the Awards.

The Applicant provided a revised undertaking on 10 December 2018 that sought to address a number of the matters raised by both the Commission and by the HSU. The following summary of the undertakings is provided:

(i)Clause 11 Dispute Settlement Procedure – undertaking provided to clarify that employees may be represented by a person or organisation of their choosing.

(ii)Clause 15 Supported Wage System – undertaking provided aligning the minimum amount payable under the Agreement ($86.00 per week), with minimum rates required by the Supported Employment Services Award 2010[6].

(iii)Clause 22 Higher Duties Allowances – undertaking provided that higher duties arrangements will be provided in line with Clause 30 of the Award.

(iv)Clause 29(a)(i) Hours of Work – undertaking provided that for a range of identified classifications under the Agreement the span of ordinary hours would be consistent with Clause 24 of the Award, i.e. 6.00am to 6.00pm.

(v)Clause 29(b) Hours of Work Executive Staff – undertaking provided that the provision for altering hours of work by “mutual agreement” did not operate so to allow the alteration of hours of work of executive staff in a manner inconsistent with Clauses 6 & 29 of the Agreement.

(vi)Clause 19 Part-Time Employees - undertaking provided that would, if accepted, establish two options for part-time employees in respect of the agreement and variation of their hours of work:

a. Option 1 - Additional clause that would provide an option for part-time employees on commencement of employment or existing employees on request that their hours of work arrangements be agreed in term reflected in the Award; and
b. Option 2 - Strengthened certainty and protections of part-time hours of work arrangements in the existing clause.

Statutory Provisions

Section 186(1) of the Act establishes a “basic rule” that where an application for approval of an enterprise agreement is made under s 185 of the Act (which prescribes the time in which such an application must be made and its content), the Commission must approve the agreement if the requirements in ss.186 and 187 of the Act are met. Sections 186 and 187 of the Act set out a range of approval requirements. Section 186(2) of the Act sets out approval requirements in relation to the safety net, and relevantly provides as follows:

“186 When the FWC must approve an enterprise agreement—general requirements
…
(2) The FWC must be satisfied that:(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; an
(b) if the agreement is a multi‑enterprise agreement:

(i)the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Section 193 prescribes what is necessary to pass the better off overall test. It relevantly provides:

“193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1)An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section .if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

…

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

Does the Agreement satisfy the BOOT?

I am satisfied that the undertakings provided by the Respondent in respect of Clause 11 Dispute Settlement Procedure, Clause 15 Supported Wages System, Clause 22 Higher Duties Allowance, Clause 29(a)(i) Hours of Work and Clause 29(b) Hours of Work Executive Staff address a number of the matters raised by the Commission and in the HSU’s Form F18.

I turn now to consider the issue of part-time hours of work arrangements raised by the HSU.

Before turning to the terms of the Agreement with respect to part-time hours of work it is necessary to detail the Award provisions which are found at Clause 10.3 of the Award and relevantly state as follows:

“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.”

Overtime arrangements with respect to part-time employees are dealt with at clause 28.1(d) of the Award and relevantly state as follows:

“28.1Overtime rates

……………
(d) Part-time employees

Where agreement has been reached in accordance with clauses 10.3(b) or (c), a part-time employee who is required by the employer to work in excess of those agreed hours must be paid overtime in accordance with this clause.
……………..”

The Award provisions reproduced above ensure that a part-time employee on commencement of employment has certainty regarding their hours of work. That certainty is in terms of how many hours are to be worked per week, on what days those hours are to be worked and what time they are required to start and finish work on each day they have agreed to work. Under the Award provisions, it is open for part-time employees to agree to a change in their hours of work arrangements, but such agreement must be recorded in writing. Such agreement may include a part-time employee working additional hours at ordinary time rates of pay in a particular week, over a particular period or on an ongoing basis. Any direction by an employer to work additional hours beyond agreed part-time hours of work would attract overtime penalty payments under the Award.

Clause 19 Part-Time Employees of the Agreement contains a series of non-contentious provisions at sub-clauses a) to d) which provide that:

(i)Part-time employees are entitled to annual leave and personal leave under the Agreement;

(ii)Penalty rates payable to full-time employees for work on weekends and public holidays would apply to part-time employees;

(iii)Part-time employees are entitled to all conditions under the Agreement; and

(iv)Part-time employees shall be provided with a minimum three hours work or alternatively paid for a minimum three hours work on each occasion they are required to work

The sub-clauses of the Agreement that the HSU have raised concerns about are found at sub-clauses 19(e)-(j) and relevantly state as follows:

“…………..

(e)Before commencing employment, the employer and employee will agree in writing on:
(i)the span of hours that the employee may be rostered within;

(ii)the rostered hours, where the nature of the role entails certainty regarding likely rostered hours, and there will not be any operational requirement to vary hours in the future; and

(iii)the agreed minimum number of contracted hours to be worked per week or fortnight.

(f)Clauses (e)(i), (e)(ii) and/or (e)(iii), immediately above, may be varied by an agreement in writing between the employer and employee.
…………………….
(h) A part-time employee may agree in writing to work more hours in any week or fortnight than the agreed minimum number of contracted hours. By way of clarification, an agreement under this clause includes a situation where the Company records additional hours in an electronic or paper based time and attendance system and the part-time employee attending for work for the additional hours. The Company 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 the Agreement, or 76 hours per fortnight, will be paid at the applicable overtime rates prescribed by this Agreement.

(i)Any hours (agreed to as described in clause 19(h)) worked by the part-time employee in addition to the agreed minimum number of contracted hours, and paid at ordinary time rates of pay, will count towards the accrual of annual leave, long service leave and personal leave.

(j)Outside of an agreement described in clauses 19(h) and 19(i), part-time employees will not be directed to work, at ordinary time rates of pay, above the employee’s agreed minimum number of contracted hours.
…………….”

The HSU submit that the terms of Clause 19 of the Agreement are less beneficial than the Award provisions in a number of respects:

(i)Clause 19(e)(i) provides for a span of hours within which the part-time employees hours of work may be rostered rather than fixed days and starting and finishing times;

(ii)Clause 19(e)(ii) provides that agreement on part-time hours will include “the rostered hours” but such clarity is subject to caveats, that being rostered hours will be provided only where the role requires certainty of hours and where there will not be any operational requirements to vary the hours. This according to the HSU diminishes the certainty that would otherwise be available under the terms of the Award and is according to the HSU less beneficial.

(iii)Clause 19(e)(ii) also provides that the agreement entered into by the employer and employee is for a “minimum number of contracted hours” as opposed to the Award provision which provides for agreement on the actual hours of work. This According to the HSU provides for less certainty than the Award and is consequently less beneficial.

(iv)Clause 19(h), according to the HSU, diminishes the protections that the Award provides in respect of part-time employees’ ordinary hours of work only being able to be altered with written agreement. The HSU submit that the Award protection is diminished by reason of the capacity of the employer under clause 19(h) to roster a part-time employee for additional or altered hours of work without written agreement having been obtained.

The Applicant responded to the concerns raised regarding the part-time hours of work arrangements with an undertaking that provides that Clause 19 of the Agreement is deleted and replaced. The relevant extracts of the revised clause proposed in the undertaking are as follows:

“……

(e)Before commencing employment, the employer will provide the Employee with the following options:

Option 1
The Employer and Employee will agree in writing

(i)A regular pattern of work including the number of hours to be worked each week;
(ii)The days of the week the Employee will work; and

(iii)The starting and finishing times each day.

The terms of the agreement under Option 1 will not be varied (unless in exceptional circumstances the employer directs the employee to work additional hours at overtime rates), provided that the Employer may propose a change to the Employee’s regular roster or ordinary hours in accordance with clause 13(i) of this Agreement.
Or
Option 2
The Employer and Employee will agree in writing on:
(i)The span of hours that the Employee may be rostered within;

(ii)The agreed number of contracted hours to be worked per week or fortnight; and

(iii)That the employee, when required, is agreeable to being offered additional hours above the agreed number of contracted hours to be worked per week or fortnight, in accordance with clause 19(h)

(f)Clauses (e)(i) and/or (e)(ii) of Option 2, immediately above, may be varied by an agreement in writing between the Employer and Employee.

……………
(h)A part-time employee (who has elected Option 2 under sub-clause (e)) may agree in writing to work more hours in any week or fortnight than the agreed number of contracted hours. A part-time Employee may be offered additional work via (1) rostered hours above the Employee’s number of contracted hours or (2) by way of a request to work additional hours. By way of clarification, an agreement under this sub-clause includes a situation where the Company records additional hours in an electronic or paper based time and attendance system and the part-time employee attending for work for the additional hours. The Company 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 the Agreement, or 76 hours per fortnight, will be paid at the applicable overtime rates prescribed by this Agreement.

.....................
(m) In the circumstances where a part-time Employee seeks to move from Option 1 to Option 2 or vice versa, the Employee is to put such a request in writing. The Employer will not unreasonably refuse any request but will take into account rostering arrangements and staff needs. Should agreement not be reached, the Employee may commence the dispute process provided in clause 11 of this Agreement. All approvals will commence in the next pay cycle following approval being provided and will be reflected in writing by both parties.”

The proffered undertaking seeks to address the concerns that Clause 19 in the Agreement fails to provide the same certainty of hours and entitlements as the relevant Award provision. A key change proposed is the provision of two options to be made available to new employees, on commencement and on request by current part-time employees during their employment.

The proposed Option 1 creates a right for new employees, if they choose, to be able to agree with the employer on a regular pattern of work including, the number of hours of work per week; the days of the week on which those hours are to be worked; and the starting and finishing times of work on each of those days. These provisions provide a similar level of certainty to that of Clause 10.3 of the Award. An employee entering into an agreement on their hours of work in accordance with Option 1 would, as is the case under the Award, be required to agree in writing to any change to those agreed hours of work. Any hours that the employer directed the employee to work in excess of or outside of agreed hours would attract overtime penalty payments.

I am satisfied that the proposed Option 1 in the Applicant’s proffered undertaking provides an entitlement that is substantially the same as Clause 10.3 and 28.1 of the Award provides. It is in my view no less beneficial.

The fact that Option 1 is no less beneficial than the Award does not relieve me of the obligation to assess Option 2. That is because the choice of Option 1 will only be available by right to new employees. Existing part-time employees will not have an unfettered right to move to Option 1. A switch to Option 1 by existing part-time employees would be subject to employer agreement, which while not able to be unreasonably refused, is not assured. Consequently, it must be assumed for the purposes of the BOOT assessment that some part-times employees will continue to be subject to part-time hours of work arrangements that would be covered by Option 2 under the proposed undertaking. Having concluded that Option 2 would likely continue to cover some part-time employees, I turn now to assess whether the proposed Option 2 is less beneficial than the Award.

Option 2 of the proffered undertaking is compared and contrasted with the relevant Award provisions in the following ways:

(i)It provides for an agreed span of hours within which the part-time employee may be rostered. This can be contrasted with the Award provisions which provides for fixed and agreed hours of work including the days of the week and starting and finishing times.

(ii)It provides for an agreed number of contracted hours per week which is similar to the Award.

(iii)Changes to the span of hours or the number contracted hours of work arrangements may be agreed but must be in writing as per the Award.

(iv)Entering into an agreement under Option 2 requires that employees are “agreeable” to being offered additional hours above the agreed contracted hours. There is no comparable provision in the Award.

(v)A part-time employee engaged under Option 2 “may” agree in writing to work more ordinary hours in any week or fortnight. The option of a part-time employee to agree in writing on more hours in a week or fortnight is also available under the Award. The difference to the Award, however, is that under the Agreement, “written agreement” would be taken to include where the Company records the additional hours in the attendance system (paper based or electronic) and the part-time employee attends work.

I accept the HSU submission that part-time employees engaged under Option 2 of the proposed undertaking would be subject to less certainty regarding their ordinary hours of work than would be the case if they were engaged under the Award or the proposed Option 1. That is by reason of Option 2 providing for an agreement on the spread of hours within which part-time hours of work may be rostered. Part-time employees engaged under Option 2 would however, if the undertaking were accepted, have certainty regarding the actual “number” of contracted hours per week as opposed to the provision provided for in the Agreement which refers to a “minimum number of contracted hours”. The latter implies greater uncertainty as to the actual number of hours of work that may be rostered.

I am satisfied that there is potential for uncertainty as to when hours of work may be rostered within the agreed span of hours for part-time employee engaged under Option 2. A degree of flexibility of hours of work may suit some employees but may raise challenges for others in terms of study or family and caring responsibilities for example. On balance, I regard the rostering of hours of work within an agreed span of hours under Option 2 as being less beneficial than the relevant Award provisions.

Part-time employees engaged under Option 2 of the proposed undertaking would however, as is the case under the Award, have the same protection of their agreed contracted hours of work as is the case under the Award. That is, agreement in writing would be required to alter their contracted hours of work.

While a particular element of Option 2 is that a part-time employee is “agreeable” to being “offered” additional hours, there is nothing in the wording of the clause in my view that compels a part-time employee to accept the additional hours that are “offered” to them. As is the case under the Award, if they were directed to work additional hours beyond their contracted hours they would be entitled to overtime penalty payments.

The Agreement and proposed undertaking provides for greater flexibility in the manner in which a part-time employee may “agree” to additional hours. As made clear above, there is, however, nothing in the wording of the proposed Agreement clause and undertaking, in my view, that mandates that a part-time employee must accept and work additional hours that are offered to them. Notwithstanding the use of alternate paper based or electronic means of recording part-time employees’ agreement “in writing” to additional hours, I am not persuaded that this element of the Agreement and proposed undertaking is less beneficial given there is no compulsion for a part-time employee to accept the additional hours offered.

Having considered the proposed Clause 19 of the Agreement in conjunction with the proffered undertaking, I have concluded that the provision is less beneficial than the Award provision. This is due to the diminished certainty of when part-time employees’ contracted hours of work may be rostered within the agreed span of hours. Other features of the proposed clause are in my assessment neutral considerations for the reasons outlined above.

While I consider that the diminished lack of certainty of rostered hour of part-time employees engaged under Option 2 is less beneficial I do not regard it as a significant detriment. That is because of the protections of the “agreed number of contracted hours” above which a part-time employee would be entitled to overtime penalty payments if directed to work additional hours.

Having reached this conclusion regarding the part-time hours of work provisions in Clause 19, it is necessary for me to assess the level of detriment of the clause, and then as part of the BOOT assessment, weigh that with other provisions in the Agreement that may be more or less beneficial.

Other Agreement Provisions

The Applicant identified within its F17 Statutory Declaration[7] a number of provisions within the Agreement that are less beneficial than the Award. The particular provisions referenced include:

(i)Supported wage rate – addressed by proposed undertaking
(ii)Entitlement of shift workers to extra week of annual leave subject to a more prescriptive definition.
(iii)Higher duties allowance – addressed by proposed undertaking.
(iv)Span of hours for a dayworkers
(v)Shift lengths
(vi)Meal provisions when working overtime.
(vii)Public holiday penalty payment of 200% vs 250% in Award
(viii)Rest period after overtime
(ix)Tool allowance
(x)Uniform allowance not provided although employees provided with a uniform.
(xi)Number of Award provisions not provided for in Award including, deduction for board and lodging; heat allowance; nauseous work; occasional interpreting, telephone allowance; travelling, transport and fares; and ceremonial leave.

The Applicant also identified within its F17 Statutory Declaration[8] a significant number of provisions within the Agreement that were more beneficial than the Award including:

·Rates of pay ranging between; .42-93.36% above Award for administration employees; 4.15-18.31% above Award for operational employees; 14.92-53.77% above Award for professional employees and 17.6-59.46% above Award for technical employees.
·Shift workers entitled to an extra day of annual leave if required to work on public holiday.
·Casual employees entitled to three hour minimum engagement.
·Employees handling cash allowance.
·License allowance.
·Meal breaks entitlement after four hours.
·Salary sacrifice for superannuation.
·Paid meal breaks
·Time off in lieu of overtime.
·Family friendly and flexible work practice provisions
·Paid parental leave of 12 weeks.
·Penalty for late payment of wages.
·Protective clothing
·Professional development and study leave.
·30% penalty for consecutive shifts
·Four weeks’ notice of change of roster
·Rosters provide for minimum two consecutive days off per week
·Sunday shift penalty of 200%
·Shift worker overtime penalty rate of 200%.
·20 days personal leave
·10 days paid bereavement leave.
·Breastfeeding facilities
·Purchase of additional leave.
·Banking of hours
·On-call leave accrual.
·Minimum recall payment of four hours
·Redundancy benefit greater than NES.
·Trade union training provisions.
·Training allowance.
·Domestic violence leave.

The HSU did not challenge or make submissions in relation to the range of more beneficial provisions within the Agreement. Nor did it, despite being invited to do so by the Commission during the conference, make submissions as to the weight that should be given to the less beneficial provisions it had identified when balanced against the range of more beneficial provisions within the Agreement.

Summary

It will be seen from the statutory provisions provided above that an enterprise agreement will be found to have passed the BOOT if the Commission is satisfied, that at the test time, each award covered employee and each prospective award covered employee employed under the agreement would be better off overall if the agreement applied to the employee rather than if the award applied to the employee.

The application of the BOOT is not applied as a line by line test. Rather, it is a global consideration of the provisions in the agreement compared to the award, taking into account those provisions that are less beneficial and weighing them against those provisions that are more beneficial.

In conducting its assessment of the Agreement, it is open to the Commission to accept undertakings given pursuant to s 190 of the Act. That is, if the Commission is satisfied that the undertaking or undertakings provided are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

The Applicant has provided undertakings to address a number of concerns raised by the Commission and by the HSU with respect to clause 19. As discussed above, the undertakings provided in relation to clause 19 strengthen the protection of part-time working hour’s arrangements but do not wholly remove the detriment relative to the Award. That detriment relates to the certainty of rostering of hours of work for part-time employees engaged under Option 2 of the proposed undertaking.

While a part-time employee cannot be required to work hours in excess of contracted hours without penalty payments it is the case that current part-time employees who remain engaged under Option 2 of the proposed undertaking could have their ordinary hours of work altered within their agreed spread of hours. I regard this as a “lifestyle” detriment rather than a financial detriment as they would remain entitled to overtime penalty payments if they were required to work beyond their contracted hours of work.

I have considered the undertakings in the context of the Agreement and I am satisfied that the undertaking causes no financial detriment to any employee and does not constitute a substantial change to the Agreement.

I am further satisfied that the limited number and nature of the less beneficial provisions identified in the Agreement including clause 19 are greatly offset by the substantial number of more beneficial provisions including base rates of pay which range from between .4 and 93% above the Award. I note that the HSU has not challenged the veracity of the Applicant’s contentions regarding the more beneficial provisions.

Conclusion

A copy of the Applicant’s undertakings is attached in Annexure A. Having reviewed the material filed by the parties I am satisfied that the Agreement with the undertakings passes the BOOT.

I am further satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work regulations 2009 is taken to be a term of the Agreement.

The HSU, 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) of the Act, I note that the Agreement covers the organisation.

The Agreement was approved on 21 December 2018 and, in accordance with s 54 of the Act, will operate from 28 December 2018. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

Annexure A

[1]Section 173 of the Act.

[2] Section 174 of the Act.

[3] Section 180 of the Act .

[4] MA000027.

[5] AN170046.

[6] MA000103.

[7] Form F17 – Employer’s Statutory Declaration in support of an application for approval of an enterprise agreement (other

than a greenfields agreement), dated 22 December 2017, Attachment F.

[8] Ibid, Attachment G.

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Healthscope Operations Pty Ltd T/A Healthscope [2018] FWCA 7805

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[2018] FWCA 7805

21 DECEMBER 2018