[2020] FWC 2479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NDN Care Services Pty Ltd T/A Delladale Aged Care
(AG2019/4668)

COMMISSIONER WILSON

MELBOURNE, 13 MAY 2020

Application for approval of the NDN Care Services Pty Ltd (trading as Delladale Aged Care), ANMF and HSU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the NDN Care Services Pty Ltd (trading as Delladale Aged Care), ANMF and HSU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NDN Care Services Pty Ltd T/A Delladale Aged Care.

[2] The Agreement is a single enterprise agreement and is couched to have application to any of NDN Care Services’ Victorian operations, including any aged care facility acquired or opened by it, subject to the Act’s transfer of business provisions (Clauses 4.1 – 4.2). While styled as an “ANMF and HSU Enterprise Agreement” the Australian Nursing and Midwifery Federation (ANMF) was the sole union or employee bargaining representative, and the Health Services Union (HSU) was not a bargaining representative. NDN Care Services was represented by its paid agent, Michael Rahilly, with me being prepared to grant permission for representation by a paid agent pursuant to s.596(2)(a) of the Act.

[3] On 6 January 2020, the Commission sent correspondence to the Applicant advising that after an initial review of the application it had a number of concerns as to whether the Agreement satisfied the requirements of the Act for approval. The correspondence raised 12 matters for consideration by the Applicant, which may be summarised in three groups; those relating to Pre-approval and required matters; matters connected with possible inconsistency with the National Employment Standards (NES); and matters associated with the Better Off Overall Test (BOOT).

Pre-approval

[4] The following pre-approval and “required terms” concerns were identified to the Applicant:

1. Provision of Notice of Employee Representational Rights (NERR) – The Commission considered the Applicant’s response to Question 2.4 of the Form F17 Employer’s Support Statutory Declaration, on the subject of provision of the NERR to employees to be insufficient. The Form F17 as provided stated the NERR was placed in the staff room on the staff noticeboard. A resubmitted Form F17 was sought.

2. Definition of a Shiftworker for the purposes of the NES – The Agreement did not appear to contain a definition of shiftworker as required by s.196 of the Act.

National Employment Standards (NES)

[5] The following matters of the Agreement’s consistency with the National Employment Standards (NES) were raised:

3. Clause 53 (Annual Leave) – The entitlement is expressed as 5 weeks or 190 hours for Registered Nurses and 4 weeks or 152 hours for Enrolled Nurses and HASA Employees. For the purposes of context, a “HASA Employee” is defined by the Agreement to be “an Employee whose employment would, but for this Agreement, be covered by the Aged Care Award 2010” (Clause 10.3). The NES does not express the entitlement in hours and depending on how the leave is deducted, may result in the employee receiving a lesser entitlement than the NES.

4. Clause 54.3 (Personal Leave) – The entitlement is expressed as 7 hours 36 minutes for each month of service. Employees can work shifts of up to 10 ordinary hours and dependant on how the leave is deducted, this may result in employees receiving a lesser entitlement to personal/carer’s leave than provided under the NES.

5. Clause 57 (Long Service Leave) – The entitlement is available to employees who have completed 15 years of continuous service. However, the entitlement under the Victorian Long Service Leave Act 2018, which the Commission initially held the view was the appropriate reference instrument provides an employee with access to the leave after the completion of 7 years of continuous service.

Better Off Overall Test (BOOT)

[6] The following concerns were identified in relation to whether employees will be better off overall under the Agreement as may be required by the Better Off Overall Test (BOOT):

6. Clause 47.3 (Weekend Work for Director of Nursing/Deputy Director of Nursing) – Weekend penalties do not appear to apply to a Director of Nursing or Deputy Director of Nursing. The Award does not exempt any classification from this entitlement. Rates of pay for these employees do not appear high enough to compensate.

7. Clause 47 (Reduced Sunday Penalty for Non-Casuals) – 150% penalty applies to all weekend work except for HASA Employees who are entitled to 160% for Sundays. The Commission’s modelling suggested that an employee at the lowest classification (HASA Wage Skill 3) working a 10-hour Sunday shift and receiving 160% penalty on that shift, may be disadvantaged (although the concern is not confined to that classification). Depending on the hours worked, many HASA Employees may be disadvantaged if they worked regularly on Sundays.

8. Clause 58.6 (Public Holiday Penalty for Casual Enrolled Nurses and HASA Employees) – With the Agreement providing a 175% penalty in lieu of a casual loading, the Agreement’s rates of pay may be insufficient to compensate for what would otherwise be a 200% loading for Enrolled Nurses calculated on the loaded rate, and 250% calculated on the base rate for HASA Employees.

9. Clause 27.6 (Casual Registered Nurses and weekend work) – It appears from the Clause that Registered Nurses do not receive a casual loading for weekend work and that the weekend penalty is calculated on the base rate of pay rather than the loaded rate of pay. On the Commission’s modelling, the rates of pay in the Agreement may not be high enough to compensate for this reduction for Registered Nurses at the lower classifications and those in the higher classifications with salaries determined by the number of beds within their responsibility.

10. Clause 27.6 (Casual Enrolled Nurses and weekend work) – It would also appear that the same clause causes a BOOT difficulty for casual Enrolled Nurses working on weekends. On the Commission’s modelling this reduction appears to be an issue for all classifications of Enrolled Nurse Employees.

11. Clause 46 (Casual Nurses and Overtime) – The Agreement does not specify that overtime for casuals will be calculated on the loaded rate of pay. Depending on the hours and overtime worked, employees in the lower and higher ends of the nursing classifications may be disadvantaged.

12. Clause 46 (Overtime outside of span) – While making clear that overtime is payable outside of a 12-hour span of ordinary hours, the Agreement does not appear to specify what the span may be. This may be an issue in determining HASA (Aged Care) Employees to be better off overall.

[7] The Commission did not receive a response to the correspondence sent to the Applicant on 6 January 2020. The Commission sent a further email on 3 February 2020, notifying the Applicant that no response had been received. What then happened appears in hindsight to have included a miscommunication between the Applicant and its representative Michael Rahilly about who would communicate with the Commission about what:

• On 4 February 2020, Nishan Saparamadu, Director of Nursing of NDN Care Services Pty Ltd, sent my Chambers a response in the form of signed undertakings. The undertakings are dated 28 January 2020.

• On 5 February 2020, the ANMF’s Sandra Bonavia corresponded with Mr Saparamadu, Mr Rahilly and my Chambers, advising that the undertakings appeared satisfactory, but noting that a number of issues raised by me had not been addressed.

• On 6 February 2020 at 12.18 PM, my Chambers communicated with all concerned advising that the response seen to that date was inadequate, pressing the need for some matters to be better addressed while noting that others appeared not to have been addressed at all.

• On 6 February 2020 at 3.58 PM, Mr Saparamadu responded to my Chambers correspondence from the same day at 12.18 PM, providing at length what were taken to be submissions dealing with all matters identified in the Commission’s 6 January 2020 concerns correspondence. While it is obvious from how Mr Saparamadu cut and paste the material that the submissions were prepared by Mr Rahilly, there is nothing in the communication that shows the date or time he received the material from Mr Rahilly. More pertinently, there is nothing to suggest that what Mr Saparamadu set out is intended to be a response to the 6 January correspondence and not the 6 February 2020 email.

• On 10 February 2020, Mr Rahilly replied to the Commission’s 6 February 2020 correspondence and acknowledged there had been a miscommunication. What then followed are submissions largely if not completely identical to those forwarded by Mr Saparamadu on 6 February 2020. While the content of Mr Rahilly’s material refers to undertakings “in the form attached”, none were attached, and it is presumed that the references are to those provided to the Commission by Mr Saparamadu on 28 January 2020. I take Mr Rahilly’s correspondence on 10 February 2020 as confirming the undertakings provided directly by his client’s Director of Nursing, Mr Saparamadu on 4 February 2020 as being the undertakings the Applicant relied upon for the Commission’s consideration of its application.

• 2 March 2020, having reviewed the Applicant’s submissions and undertakings, my Chambers advised the parties that my concerns remained in significant form, inviting defined undertakings on some NES matters, and indicating the Commission would determine the remaining matters, either on the papers or after a hearing if such was requested by any party.

• On 4 March 2020, after expressing some confusion about the Commission’s remaining concerns, the Applicant sought the matter to be heard.

• On 5 March 2020, the parties were advised the Commission would hear the matter on 10 March 2020, which was relisted to 28 April 2020 owing to the unavailability of the ANMF.

• The matter was then heard by me on 28 April 2020, with Mr Rahilly appearing for the Applicant and Ms Bonavia for the ANMF.

[8] The undertakings provided by the Applicant directly on 4 February 2020, were in the following form:

“2. In respect to Clause 47.1 of the Agreement, that provision will be applied as if the reference to 160% was a reference to a figure of 164.5% and the following further proviso were included:

“Provided further that in relation to part-time Registered Nurses Grade 1 and part-time Enrolled Nurses in Pay Point 3 a loading of 154% will be applied for each Sunday AM shift for each employee and in the case of casual Registered Nurses Grade 1 and Grade 2 year 1 and casual Enrolled Nurses in Pay Points 3 and 4 who work only a Sunday AM shift in a week or who work a Sunday AM shift and less than the same number of non-Sunday hours in the same week a loading greater than 150% will be paid to ensure the remuneration payable to the employee is equal to or exceeds the total remuneration that would apply to that employee if they had been employed in the equivalent classification under the Nurses Award 2010. Such reconciliation against the Nurses Award 2010 will be undertaken for each nursing employee who works a Sunday shift at the end of each pay period.”

3. In respect of Clause 47.3 of the Agreement, that provision will have no application during the life of the Agreement.

4. In respect of Clause 27.6(c)(ii) of the Agreement, that provision will be applied as if the reference to “Public Holidays” contained therein were omitted. In addition, the provisions of Clause 58.6(a) will be applied as if the second sentence therein reads as follows:

“A casual Enrolled Nurse shall be paid 200% and an Aged Care Employee shall be paid 250% (including the 25% casual loading) for the time worked.”

5. These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.”

[9] Mr Rahilly’s 10 February 2020 submissions may be summarised in the following manner, together with an indication of whether the submissions resolved the Commission’s concern or not:

Pre-approval matters

1. Provision of NERR – Relying upon the provisions of Regulation 2.04 (7) which permits an employer to display the NERR in a conspicuous location at the workplace that is known by and readily accessible to the employee the Applicant argued that its display in the staff room conformed with the obligations of the regulation. These submissions fully resolved the issue to the satisfaction of the Commission.

2. Definition of a Shift Worker for the purposes of the NES – The Applicant argued that as a matter of construction of both the NES and the Agreement there is no necessity to separately specify that the additional week’s annual leave provided for within Clause 53.2 of the Agreement is for a “shiftworker for the purposes of the NES”. The submission did not entirely resolve the Commission’s concern.

NES matters

3. Clause 53 (Annual Leave) – The Applicant argued that “the way the Act is structured an employee will only accrued entitlement to a maximum 38 hours of annual leave for each week of leave they are entitled to” and that such is “because the entitlement to payment under s.90 is an entitlement to be paid the employee’s base rate of pay for the ordinary hours work employee would have worked in the period during which the leave is taken. That being so, what is deducted from the employee’s entitlement to paid annual leave is the number of ordinary hours which is paid to the employee in which the employee would have otherwise worked for taking the leave and is not receiving any lesser entitlements than the NES”. 1 The submission did not entirely resolve the Commission’s concern.

4. Clause 54.3 (Personal Leave) – Similar submissions to the matter of annual leave were advanced in respect of personal leave with it being said that “paid leave is accrued in hours based upon the ordinary hours worked by the employee and any leave taken is paid for having regard to the ordinary hours of work the employee would have worked but for the taking of the leave and the deduction from the employee’s entitlement is equivalent to the number of ordinary hours which would have been worked had the leave not been taken”. 2 The submission did not entirely resolve the Commission’s concern.

5. Clause 57 (Long Service Leave) – The Applicant submitted that long service leave in the Agreement must be referenced against two award-derived long service leave terms, the Nurses (Victorian Health Services) Award 2000 and the Health and Allied Services Private Sector – Victoria Consolidated Award 1998. 3 It was argued that, because of this “any State law providing long service leave terms can have no application to employees covered by this Agreement”.4 These submissions fully resolve the issue to the satisfaction of the Commission.

BOOT matters

6. Clause 47.3 (Weekend Work for Director of Nursing/Deputy Director of Nursing) – The Applicant proposed the resolution of the Commission’s concern through an undertaking to the effect that the clause would have no application during the life of the Agreement. The undertaking fully resolves the issue to the satisfaction of the Commission.

7. Clause 47 (Reduced Sunday Penalty for Non-Casuals) – The Applicant’s submissions accepted there was a BOOT issue inasmuch as the penalty applicable to the lower classification levels of PCW and HASA Employees was insufficient but noting the rarity of certain shift configurations. It proposed an undertaking which fully resolves the Commission’s concern.

8. Clause 58.6 (Public Holiday Penalty for Casual Enrolled Nurses and HASA Employees) – The Applicant proposed an undertaking which fully resolved the Commission’s concerns.

9. Clause 27.6 (Casual Registered Nurses and weekend work) – The Applicant made submissions contesting the basis of the Commission’s concern and proposed an amendment to the reconciliation clause presently within Clause 47.1 of the Agreement as made. The undertaking provided by the Applicant does not entirely resolve the Commission’s concern.

10. Clause 27.6 (Casual Enrolled Nurses and weekend work) –The Applicant made submissions contesting the basis of the Commission’s concern and proposed an amendment to the reconciliation clause presently within Clause 47.1 of the Agreement as made. The undertaking provided by the Applicant does not entirely resolve the Commission’s concern.

11. Clause 46 (Casual Nurses and Overtime) - The Applicant made submissions contesting the basis of the Commission’s concern, putting forward that “what is unclear is whether a casual Enrolled or Registered nurse entitled to overtime penalties at all”. The submissions provided by the Applicant did not resolve the Commission’s concern.

12. Clause 46 (Overtime outside of span) - The Applicant made submissions to the effect that “working outside the span of hours does not attract any entitlement to overtime payments either under the Agreement or the Aged Care Award 2010” but that for other reasons “any hours worked between 10 and 12 hours are payable at time and a half”. 5 The submissions provided by the Applicant did not resolve the Commission’s concern.

Summary of resolved matters and those requiring determination

[10] Review of the Applicant’s undertakings and submissions shows the status of the Commission’s concerns as follows (with the numbering consistent with the numbering of that in the Commission’s initial concerns correspondence):

• Resolved, without the need for an undertaking:

• Item 1 – Provision of NERR;

• Item 5 – Clause 57 (Long Service Leave);

• Resolved – through an undertaking:

• Item 6 – Clause 47.3 (Weekend Work for Director of Nursing/Deputy Director of Nursing);

• Item 7 – Clause 47 (Reduced Sunday Penalty for Non-Casuals);

• Item 8 – Clause 58.6 (Public Holiday Penalty for Casual Enrolled Nurses and HASA);

• Matters requiring determination:

• Item 2 – Definition of a Shiftworker for the purposes of the NES;

• Item 3 – Clause 53 (Annual Leave);

• Item 4 – Clause 54.3 (Personal Leave);

• Item 9 – Clause 27.6 (casual Registered Nurses working on weekends) – noting that the provided undertaking (number 4) is insufficient for the Commission’s purposes;

• Item 10 – Clause 27.6 (casual Enrolled Nurses working on weekends) – noting that the provided undertaking (number 4) is insufficient for the Commission’s purposes;

• Item 11 – Clause 46 (Casual Nurses and Overtime); and

• Item 12 – Clause 46 (Overtime outside of Span).

SCOPE OF THIS DECISION

[11] This is a decision relating to provisions within the Act’s Part 2 – 4, Enterprise Agreements.

[12] Part 2 – 4, Division 3 (Bargaining and representation during bargaining) sets out certain procedural steps for the commencement of bargaining and bargaining itself. The requirements of Division 3 do not require determination in this decision, with me being satisfied on these matters from the material filed by the Applicant.

[13] Part 2 – 4, Division 4 (Approval of enterprise agreements) contains requirements to be satisfied for the Commission to approve an Enterprise Agreement. In relation to the matters set out within Subdivision B (Approval of enterprise agreements by the FWC):

• The matters within ss.186 and 187 require consideration;

• The Commission is also required to consider whether any concerns it holds in relation to s.186 may be remedied through an undertaking given under s.190;

• The provisions of Subdivision C (Better Off Overall Test) require determination;

• The provisions of Subdivision D (Unlawful terms) do not require consideration;

• The provisions of Subdivision E (Approval requirements relating to particular kinds of employees) concerning shiftworkers requires consideration;

• No matters within Subdivision F (Other matters) arise for determination (dealing with the model flexibility and consultation terms).

CONSIDERATION

[14] As summarised above, seven of the Commission’s initial concerns are unresolved and require determination in this decision.

[15] Because of similar considerations for some of the concerns, the above seven matters may be grouped into four discussion parts; the shiftworker definition (item 2 of the Commission’s initial concerns); annual and personal leave (items 3 and 4); both matters pertaining to Clause 27.6 (items 9 and 10); and both matters pertaining to Clause 46 (items 11 and 12).

Item 2 – Definition of a Shiftworker for the purposes of the NES

[16] The Commission’s initial concerns identified two matters requiring consideration; whether the Agreement defined a shiftworker for the purposes of the NES, relating to the entitlement for additional annual leave; as well as raising that the provisions for Enrolled Nurses appeared less beneficial than the applicable Award.

[17] The second of the matters was raised since the Agreement provides that Enrolled Nurses are entitled to the additional week of annual leave if they meet a definition appearing to be derived from the Aged Care Award 2010 when the instrument applying to the employment of Enrolled Nurses in the event no enterprise agreement applies is the Nurses Award 2010. The concern expressed to the Applicant was that the Aged Care 2010 Award derived definition appears narrower in scope than one which may derive from the Nurses Award. To remedy this concern, I invited an undertaking that Enrolled Nurse shiftworkers be entitled to the additional week of leave in accordance with the definition in the Nurses Award 2010.

[18] The Applicant’s 10 February 2020 response on these subjects was firm.

[19] First, it was argued with respect to the shiftworker definition, principles of construction should lead to an acceptance that the Agreement adequately defined shiftworker annual leave eligibility and that for that reason “it must follow that where an enterprise agreement provides a definition of a shift worker for the purpose of an entitlement to an additional week of paid annual leave it must follow, in my submission, that that definition is “for the purposes of the NES” and there is no need for the agreement to use those words”. 6

[20] Second, with respect to the Commission’s concern that the additional shiftworker annual leave entitlement for Enrolled Nurses may be “narrower and therefore insufficient”, it was submitted that such was not the case. In this regard, Mr Rahilly for the Applicant submitted such a view could not be reasonably discerned:

“The second part of the issue raised appears to be concerned with the definition of a shift worker as it applies to Enrolled Nurses. This apparently arises on the basis that the definition contained in the Nurses Award 2010 should apply and that someone has concluded that the Aged Care Award 2010 definition of a shift worker is “narrower and therefore insufficient”. In relation to this, as set out in the opening paragraph the Nurses Award definition of a shift worker relies solely on the notion of the employee being “regularly” rostered to work over seven days of the week and “regularly” works on weekends. It is notable that the Award provides no definition or guidance as to what “regularly” might mean or what might constitute regular rostering over seven days of the week or regular weekend work. That being so, just how it can be concluded that the Aged Care Award definition is “narrower” is completely beyond my understanding. Indeed, it may well be that defining weekend work is constituted as four or more hours on 10 or more weekends as it is under the Aged Care Award and the Agreement is a broader definition than the undefined “regularly” under the Nurses Award.” 7

[21] Section 187(4) of the Act requires that before an agreement may be approved by the Commission, it “must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement”. Section 196, within Subdivision E, is one such requirement, with it providing the following in relation to the shiftworker definition:

“Shiftworkers

Application of this section

(1) This section applies if:

(a) an employee is covered by an enterprise agreement; and

(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

(2) The FWC must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.”

[22] The Agreement’s Clause 53 deals with the subject of annual leave. It provides that the clause applies to full-time and part-time employees, but not casual employees. Subclauses 53.1 and 53.2 set out the annual leave entitlements for those who may receive annual leave.

[23] Two awards apply to the work of the employees to be covered by the Agreement; the Nurses Award 2010 and the Aged Care Award 2010. The annual leave clause in the Agreement nominates potentially different annual leave entitlements to 3 groups of employees; Registered and Enrolled Nurses whose work is covered by the Nurses Award and “personal care workers or HASA employees” whose employment would otherwise be covered by the Aged Care Award 2010. Each instrument has different provisions for eligibility for the additional week’s annual leave available to a shiftworker.

[24] The following may be ascertained from the applicable awards and the Agreement about the different employees’ entitlements to leave (noting that this section of the decision does not deal with the matter of leave accrual):

• For a Registered Nurse:

• The basic entitlement for a Registered Nurse under the Nurses Award 2010 is five weeks of paid annual leave for each year of service with an additional week’s annual leave in the event the employee is a shiftworker as defined (Clause 31.1(c)). Under the Agreement the basic entitlement for such employee is also five weeks of annual leave which may be increased by a further one week if regarded as a shiftworker (Clauses 53.1(a) and 53.2, first bullet point);

• The Nurses Award prescribes that the additional week’s annual leave is available to an employee who “is regularly rostered over seven days of the week” and “regularly works on weekends” (Clause 31.1(b)). It is to be noted that so far as the Award is concerned there is no restriction on who is an “employee” for the purposes of the clause.

• The Agreement provides that the additional week of annual leave is available only to “[a] full-time Registered Nurse [who] is required to work and worked ordinary hours on weekdays and/or weekends” (Clause 53.2, first bullet point). Part-time employment is provided for in the Agreement at Clause 27.3, with the provision not restricting the engagement of a Registered Nurse as a part-time employee.

• The Agreement’s provision that the additional annual leave is payable if a Registered Nurse “is required to work and worked ordinary hours on weekdays and on weekends” is plainly different to the Award formulation of being “regularly rostered over seven days of the week” and “regularly works on weekends”, however is not substantively so.

It is possible that the Agreement requirement could be argued to be more beneficial for the reason that it does not include the conditions that work be on all seven days or that such be regular or that weekend work is also regular. However, the definition restricts the payment to full-time Registered Nurses and excludes part-time Registered Nurses.

I therefore consider the definition provided in respect of Registered Nurses does not conform with the requirements of s.196. This section, reproduced above, is in two parts each of which refers to an employee by using the definite article rather than providing for the circumstances of employees generally. Section 196(1) refers to the case of there being an Award in place which otherwise “covers the employee” which then defines or describes “the employee” as a shiftworker for the purposes of the NES. Subsection 196(2) then requires prior to approval for the Commission to be satisfied the Agreement defines or describes “the employee” as a shiftworker for the purposes of the NES.

What may be drawn from this is the proposition that s.196 is to be applied on the basis that if an underpinning modern award provides for an additional weeks annual leave to be provided to an employee because they are a shiftworker, then so too must the enterprise agreement being considered for approval. Support for this proposition is given by the content of the Explanatory Memorandum relating to s.196:

“Clause 196 – Shiftworkers

842. This clause sets out an additional requirement for FWA approval of an enterprise agreement in relation to shiftworkers.

843. Subclause 196(1) provides that this clause applies where an employee is covered by an enterprise agreement and a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the NES.

844. Subclause 196(2) requires FWA to be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of clause 87, which deals with annual leave. This would ensure that a shiftworker would receive five weeks annual leave for each year of service with his or her employer. A shift worker would not be able to trade away his or her extra week of annual leave under the agreement.” 8 (underlining added)

• In any event, the absence of an additional week’s annual leave for a shift working part-time Registered Nurse working under the Agreement means such employee will not be better off on this subject at least.

• For an Enrolled Nurse:

• The basic entitlement for an Enrolled Nurse under the Nurses Award 2010 is also five weeks of paid annual leave for each year of service with an additional week’s annual leave in the event the employee is a shiftworker as defined (Clause 31.1(c)). Under the Agreement, the basic entitlement for an Enrolled Nurse is four weeks of annual leave which may be increased by a further one week if regarded as a shiftworker (Clause 53.1(b) and 53.2, second bullet point); and

• The Nurses Award prescribes that the additional weeks annual leave is available to an employee who “is regularly rostered over seven days of the week” and “regularly works on weekends” (Clause 31.1(b)). It is to be noted that so far as the Award is concerned there is no restriction on who is an “employee” for the purposes of the clause.

• The Agreement provides that the additional weeks annual leave is available to an Enrolled Nurse “… whether full-time or part-time [who] works either: a) for more than four ordinary hours on 10 or more weekends; and/or b) regularly outside the hours of a day worker (i.e. PM or night shift with start and finish times outside the ordinary span of hours - 6.30am to 6pm)”.

• The Agreement’s provision about when the additional annual leave is payable to an Enrolled Nurse is obviously different to the Award, with the definition endeavouring – it seems – to provide a quantifiable metric where the Award does not. However, what is written in the Agreement is actually a mix of criteria. On the one hand, eligibility is predicated on working a minimum number of hours and weekend shifts; and on the other the eligibility is ascertained by examining whether the employee regularly works outside of the hours of a day worker. In doing so, the Agreement’s definition, and thereby the entitlement, is narrower than would be the case if the employee worked under the Award. The Award provides for the additional entitlement if two predicates are met – there is both regular rostering over seven days of the week and regular work on weekends. The Agreement provides for two alternatives: either a formula for a minimum amount of weekend work or for regular work outside of day work. The weekend work formula means that an Enrolled Nurse who worked regularly on weekends, but for less than the minimum, and also worked on other shifts over the seven days of the week with those shifts being day work would not be entitled under the Agreement to the additional week’s leave, whereas they would have that entitlement under the Award. Because of this, the annual leave entitlement for Enrolled Nurses does not conform with s.196 with it also being the case that such employee would not be better off under the Agreement on this subject.

• For a Personal Care Worker or HASA Employee:

• The basic entitlement for an employee working under the Aged Care Award 2010 is that provided for in the NES, namely an entitlement to four weeks leave (Clause 28.1 and s.87(1)(a)). The basic entitlement for a Personal Care Worker or HASA Employee under the Agreement is also four weeks of annual leave which may be increased by a further one week if regarded as a shiftworker (Clauses 53.1(b) and 53.2, second bullet point).

• The Aged Care Award defines a shift worker whose work patterns conform with either or both of two circumstances; namely someone regularly rostered to work ordinary hours outside the ordinary hours of work as a day worker as defined and/or an employee who works for more than four ordinary hours for 10 or more weekends. The Award further provides that a weekend in such context “means working ordinary time on a Saturday and/or a Sunday in any one calendar week” (Clause 28.2 (i) and (b)). The Award provides that the ordinary hours of work for a day worker will be worked between 6.00 am and 6.00 pm Monday to Friday (Clause 22.2 (a)).

• The Agreement provides that the additional weeks annual leave is available to a Personal Care Worker or HASA Employee “… whether full-time or part-time [who] works either: a) for more than four ordinary hours on 10 or more weekends; and/or b) regularly outside the hours of a day worker (i.e. PM or night shift with start and finish times outside the ordinary span of hours - 6.30 am to 6 pm)”.

• In this regard, the finding may be made that in relation to an employee classified as a Personal Care Worker or HASA Employee the Agreement adequately defines or describes a shiftworker for the purposes of the NES, and the definition leads to no concern of BOOT failure.

[25] It is apparent from the foregoing consideration that I am not satisfied the requirement in s.187(4) has been met, to the effect that the requirements of Part 2 – 4, subdivision E have been met, one of which is the requirement in s.196. While I am satisfied the test has been met in relation to a Personal Care Worker or HASA Employee, I am not satisfied it has been met for those classified as Registered Nurses working part-time, or Enrolled Nurses, whether working full-time or part-time.

Items 3 and 4 – Clauses 53 and 54.3 – Annual and Personal Leave

[26] Two matters of the Agreement’s potential inconsistency with the NES require determination in this decision, namely the accrual of leave under the annual leave and personal leave clauses. A third matter, relating to long service leave, was raised with the Applicant in the initial stages of the Commission’s consideration, however the submissions provided on the subject have fully resolved any concern about that matter.

[27] The concern expressed in relation to annual leave (Clause 53) is that the entitlement to annual leave is expressed to be “ a minimum of five weeks (190 hours for full-time Employees, pro-rata for part-time Employees)” for Registered Nurses and “four weeks (152 hours for full-time Employees, pro-rata for part-time Employees)” for Enrolled Nurses and HASA Employees. The Commission was concerned that depending on how the leave is deducted an employee may receive a lesser entitlement than the NES. The Applicant submits that there is no difference between the annual being expressed in hours or weeks as the entitlement to leave equals the same amount.

[28] The concern expressed by the Commission over personal leave was similar, since Clause 54.3 expresses the entitlement to personal leave in hours and minutes:

“54.3 Amount of Paid Personal Leave

(a) The amount of personal leave to which a full-time employee is entitled depends on how long they have worked for the employer and accrues as follows:

(i) up to 7 hours and 36 minutes, for each month of service in the first year of service (provided that where an employee works regular shifts of 9.1 paid hours or longer the employee will receive 7.6 hours per month of service or 10 days leave, whichever provides the greater benefit);

(ii) up to 106 hours and 24 minutes in each year in the second, third and fourth years of service; and

(iii) up to 159 hours and 36 minutes in the fifth and following years of service.

(b) In respect of part-time employees, the entitlement shall be on a pro rata basis of time worked.”

[29] In response to the concern with Clause 53, Mr Rahilly, for the Applicant submitted the following:

“s.87(2) of the Act which spells out how the period of paid annual leave is to be accrued and that is “progressively during a year of service according to the employee’s ordinary hours of work …”. What is clear from this provision is that it is only ordinary hours of work which attract annual leave accrual and there will be no annual leave accrual applied to any hours which are not ordinary hours. Moreover, s.62 of the Act fixes the maximum weekly hours as 38 for a full-time employee and the lesser of 38 and the employee’s ordinary hours of work in a week for a part-time employee. Accordingly, under the NES it is clear that annual leave accrues only on ordinary hours worked and that the maximum number of ordinary hours that can be worked by a full-time employee is 38 in a week it therefore follows that a period of 4 weeks annual leave is a period of 152 paid hours and 5 weeks is 190 hours. In other words, whether the entitlement is expressed in weeks or hours it is precisely the same entitlement. In the context of the accrual of annual leave, given that it is required to accrue progressively during a year of service it would mean that as a year of full-time work is 1976 hours of work (38 x 52) a full-time employee entitled to 4 weeks or 152 hours of annual leave will accrue 0.0769 hours of annual leave for each ordinary hour worked and an employee entitled to 5 weeks or 190 hours would accrue 0.0962 hours of annual leave for each ordinary hour of work performed. It is submitted that the way the Act is structured an employee will only accrue an entitlement to a maximum 38 hours of annual leave for each week of leave they are entitled to.” 9

[30] Mr Rahilly maintained this submission throughout and when pressed on the subject in the hearing advised that the Applicant would not provide an undertaking directly addressing the subject 10, although a fallback position was relied upon, which is referred to in greater detail below, to the effect that if the provision is inconsistent with the NES there was no need to provide an undertaking since Clause 6 would ensure implementation of the terms of the Agreement was not inconsistent with the NES.11 He also indicated that he may be disposed to make an amendment to Clause 6, however a firm proposition on the subject was not identified by him.

[31] On the issue of personal leave accrual in Clause 54.3, the Applicant submitted that “having regard to ss.62, 96(2) and 99 the entitlement to paid leave is accrued in hours based upon the ordinary hours worked by the employee and any leave taken is paid for having regard to the ordinary hours of work the employee would have worked but for the taking of the leave and the deduction from the employee’s entitlement is equivalent to the number of ordinary hours which would have been worked had the leave not been taken.” 12 The Applicant has not provided an undertaking dealing with the subject of personal leave entitlements or accrual, although it does rely upon two alternative positions if it is found the entitlement and accrual provision contravenes the NES.

[32] The Applicant’s first alternative submission is that undertakings directly addressing the subject matters of annual leave and personal leave accrual and entitlement are not needed for reason of the provisions of the Agreement’s Clause 6 which, it is argued, ensures implementation of the Agreement will not contravene the NES:

“6 RELATIONSHIP TO NES AND AWARDS

6.1 This Agreement contains terms that are also matters under the National Employment Standards (‘NES’) of the Act. It is not the intention of the parties to exclude the NES or any provision of the NES and it is acknowledged that such terms can only operate in the manner and to the extent prescribed by s.55 of the Fair Work Act 2009.This Agreement constitutes the entirety of the terms of agreement that exist between the parties and replaces any enterprise agreement or modern award that may have previously applied to an Employee.

6.2 The Schedules and Appendices attached to this Agreement form part of this Agreement.” (underlining added)

[33] The Applicant’s second alternative position was to suggest an unspecified amendment could be made to Clause 6.

[34] The problem with Clause 6 appearing in the Agreement as made is that it does nothing more than acknowledge that which is the legislation anyway and is unsatisfactory because it does not explicitly adjust the meaning of the plain words of other parts of the Agreement. Acceptance of the Applicant’s submissions on the subject would mean nothing in practicality, since it does not go so far as to explicitly provide that “where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence”. 13 In Mondelez Australia, a matter involving an application for referral of a matter to the Full Bench, Vice President Hatcher accepted a formulation of those words to be sufficient to overcome the apparent inconsistency of the agreement’s provisions for the accrual of personal/carers leave:

“[12] There are two critical issues which arise for consideration in respect of the referral applications made by Mondelez and the Minister. The first is whether there is, as Mondelez and the Minister contend, divided authority, in particular divided Full Bench authority, on the interpretation of s 96(1) of the FW Act. Section 96(1) provides that “For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave”. The Ai Group submitted before the Commissioner that the reference to “10 days” is to be read as meaning 10 periods of 7.6 hours each, or an entitlement to 760 paid hours of leave per annum. …

…

[19] The second issue is whether the interpretation of s 96(1) properly arises for consideration in the application for approval of the Agreement. In this respect, I consider that the submissions of the AMWU and the NUW advanced before the Commissioner must be accepted. Although clause 24 of the Agreement expresses the personal/carer’s leave entitlement in terms of hours, and therefore (particularly in the case of 12 hour shift workers) might, considered in isolation, result in some employees receiving less that their NES entitlement under s 96(1) (as interpreted in RACV v ASU), clause 3 requires any more beneficial provision of the NES to “take precedence” where there is an inconsistency between the Agreement and the NES. Therefore, to the extent that clause 24 might lead in some circumstances to a shortfall in the personal/carer’s leave entitlement under the Agreement as compared to the NES, clause 3 would require this to be “topped up” to the level of the NES entitlement. That is, on any view of s 96(1), the Agreement does not exclude the NES in respect of personal/carer’s leave, and there is no impediment to its approval on that score under s 186(2)(c), nor is any undertaking required to address that issue.” 14

[35] The formulation “where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence” is altogether stronger and more likely to create an enforceable right than that within Clause 6 of this Agreement which provides merely an intention to not exclude the NES and an acknowledgement “that such terms can only operate in the manner and to the extent prescribed by s.55 of the Fair Work Act 2009”. Albeit in the context of an undertaking dealing with a BOOT consideration, rather than a NES inconsistency matter, the Full Bench has made clear the need for certainty and enforceability of undertakings:

“In considering whether to accept an undertaking relevant to a better off overall test concern, it is necessary to analyse the undertaking to ensure that it is expressed in a way which allows it to be enforced as a term of the Agreement in accordance with s.191. An undertaking which is uncertain, ambiguous or merely aspirational such that it does not establish an enforceable entitlement for the purpose of s.191 is unlikely to meet a concern that an agreement does not pass the better off overall test”. 15

[36] In this matter, I am being asked to accept that a general and weak formulation of words at the start of the Agreement would allow the specific words later within the instrument to be overridden. To the extent Clause 6 is posited as being capable of doing that, I am not persuaded. What is within Clause 6 is a statement firstly of intent, and then secondly of that which is in the Act anyway (see s.56). Those words though do not overcome the obligation I have under s.186(2)(c) to be satisfied that the terms of the Agreement do not contravene s.55. The weakness of the language of Clause 6, together with general principles of construction would leave me concerned that the expressly inconsistent words in Clauses 53 and 54.3 would remain and be susceptible for an argument at some later time that the specific words of those clauses would prevail. 16

[37] In conclusion I am not satisfied the terms of the Agreement do not contravene the NES. That position could be overcome with an undertaking in the more specific terms used in Mondelez Australia.

Items 9 and 10 – Clause 27.6 – Casual Registered and Enrolled Nurses and weekend work

[38] The provisions of Clause 27.6 dealing with the matter of casual employment were identified by the Commission as a potential BOOT failure for both Registered and Enrolled Nurses called upon to work weekends. The nature of the concern is that the Commission’s reading of the Agreement led to the view that Registered and Enrolled Nurses do not receive a casual loading for weekend work and that instead the weekend penalty is calculated on the base rate of pay rather than the loaded rate of pay. If this is the case, the rates of pay in the Agreement may not be high enough to compensate for this reduction for all classifications of Enrolled Nurses and Registered Nurses at the lower classifications and those in the higher classifications with salaries determined by the number of beds within their responsibility.

[39] Clause 27 (Modes of Employment) provides for four categories of employment, full time, part time, casual and fixed term. Clause 27.6 deals with the subject of casual employment in the following manner, noting that Undertaking 4 modifies Clause 27.6(c)(ii) by providing that it “will be applied as if the reference to “Public Holidays” contained therein were omitted:

“27.6 Casual Employment

(a) A casual employee is an employee engaged in relieving work or work of a casual nature and whose engagement is terminable by an Employer in accordance with the Employer’s requirements without the requirement of prior notice by either party. As such casual employees are employed on an hourly basis. It is intended that casual employment will only be utilised as bank staff to assist with genuine peaks and troughs or shortages of labour where permanent staff are not available. It is not intended that casual employees will be employed on a regular or systematic basis. If this is the case, then Clause 27.8 will apply.

(b) A casual Registered Nurse Employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to the employee’s classification plus a casual loading of 25%. In addition, a casual employee shall be entitled to receive the appropriate uniform and other allowances prescribed herein.

(i) Ordinary week days – an amount equal to one thirty-eighth of the weekly wage appropriate to the employee's classification per hour plus 25 per cent; and

(ii) Saturdays, Sundays ~~and Public Holidays~~ – an amount equal to one thirty-eighth of the weekly wage appropriate to the employee's classification per hour plus 75 per cent.

(d) The Annual Leave, paid Personal Leave, paid Compassionate Leave and Termination of Employment provisions shall not apply in the case of a casual employee.

(e) Where a casual Enrolled Nurse, PCW or aged care employee has continuous service in accordance with Clause Error! Reference source not found (sic). of this Agreement, such employee shall not be excluded from the long service leave provisions prescribed in Clause 57. A casual Registered Nurse is entitled to long service leave under this Agreement and in accordance with the Long Service Leave Act 1992 (Vic) as per clause 57.4.”

[40] Two notes are recorded about the above text. Firstly, the reference in the last sentence of subclause (a) is a reference to a casual conversion clause. Secondly, the reference in subclause (e) to the Long Service Leave Act 1992 (Vic) appears to be in error, given the Applicant’s submissions referred to elsewhere in this decision on the matter of the derivation of long service leave entitlements.

[41] The concern held for the employment of casual Registered and Enrolled Nurses arose for several reasons.

[42] For Registered Nurses, the concern held by the Commission arose through an examination of the language of Clause 27.6(b) together with Clause 47 (Saturday and Sunday Work). The former clause provides that a casual Registered Nurse “will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to the employee’s classification plus a casual loading of 25%”; and the latter that on weekends the rate of payment is “at the rate of time and a half. Such rates are in addition to, not in substitution of, the relevant shift loading”.

[43] In contrast, the language of the Nurses Award is more specific, requiring that for weekend work in ordinary hours, the employee is paid a loading “of their ordinary rate of pay for the hours worked during this period”, with the loading being either 50% for hours worked on Saturday or 75% for hours worked on Sunday (Clause 26.1 – 26.2). The Award uses the term “ordinary rate” in several places, and most significantly in Clause 10.4 dealing with casual employment:

“10.4 Casual employment

(a) A casual employee is an employee engaged as such on an hourly basis.

(b) A casual employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to the employee’s classification plus a casual loading of 25%.

(d) A casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.”

[44] What stems from this is that a casual employee working shifts would receive the following: (a) an amount equivalent to 1/38^th of their weekly classification rate; AND (b) the applicable shift allowance (generally a further 12.5% or 15%); AND the casual loading, a further 25%. It would be consistent with Clause 10.4 to construe the weekend loadings in Clause 26 as a shift allowance. It follows then that the same three elements would be payable to a casual Registered Nurse, if engaged under the Award, working in ordinary hours on a weekend.

[45] In contrast, the term in the Agreement is at least ambiguous. While the language of Clause 47.1 clarifies that the weekend loading is in addition to the “relevant shift loading”, no mention is made of the casual loading.

[46] The Commission’s concern was therefore that Registered Nurses do not receive a casual loading for weekend work and that if the weekend penalty is calculated on the base rate of pay and shift loadings, rather than the rate of pay loaded with the casual loading then the rates of pay in the Agreement may not be high enough to compensate for Registered Nurse Employees in the lower classifications and in the higher classifications where wage rates are determined by the number of beds within the nurse’s responsibility.

[47] For Enrolled Nurses the concern is similar, but not identical. Clause 27.6 provides a different causal loading arrangement for Enrolled Nurses (set out above). Instead of the arrangement provided for Registered Nurses, Enrolled Nurses working under the Agreement have different casual rates for “Ordinary week days” and “Saturdays, Sundays and Public Holidays”. 17 The combined effect of Clauses 27.6 and 47.1 is to create a remarkable ambiguity; on the one hand through Clause 27.6 the casual Enrolled Nurse is to be paid on weekends “an amount equal to one thirty-eighth of the weekly wage appropriate to the employee's classification per hour plus 75 per cent”. On the other hand, for reason of Clause 47.1 the same employee is, for all rostered ordinary duty, to “be paid for at the rate of time and a half”. It is possible, but not certain to me, that Clause 27.6 is the authoritative one of the two; providing that a casual Enrolled Nurse will, on a weekend receive payment at the rate of 175% of an hourly rate of 1/38^th of the applicable weekly rate. If that is the case, the weekend rate will be lower than that to be paid if the Award applied for work on Sunday, if not at other times as well.

[48] It is unclear why the two clauses appear to deal with the same subject, and if they do why different language is employed; or whether the different language is even meant to mean anything. Beyond the tension of the clauses in the Agreement though are the provisions of the Award referred to above. Under any analysis, the weekend payments for casual Enrolled Nurses are either uncertain or lower than the Award The Commission was thus concerned that the Sunday penalty rates are lower under the Agreement than under the Award, which may mean the actual hourly rates are lower as well. Depending on the actual or forecast shifts to be worked by Enrolled Nurses this appears to be an issue for some classifications of Enrolled Nurses, particularly in the lower classifications such as Paypoint 1 to Paypoint 3.

[49] It should also be noted that Clause 49 of the Agreement provides for weekend shift penalties of an amount equal to either 2.5% or 5% “of the relevant allowance rate as defined per rostered period of duty” (Clauses 49.1 – 49.2). The lower rate is paid if the employee’s “rostered hours of ordinary duty finish between 6.00 p.m. and 8.00 a.m. or commence between 6.00 p.m. and 6.30 a.m” and the higher rate if the employee’s “majority of rostered hours of ordinary duty finish on the day after commencing duty or the majority of rostered hours are worked after midnight and before 5.00 a.m.”

[50] For a Registered Nurse, the “relevant allowance rate as defined” is “the weekly rate for Grade 2 Year 2 unless, except in respect to shift allowances when the allowance rate will be the relevant percentage of Grade 1” (Clause 10.3). For an Enrolled Nurse, the rate is “the rate specified in Appendix A of this Agreement” (Clause 10.3). The context of wage and allowance rates specified in Appendix A would suggest that this a reference to the dollar amount specified for either “AM/PM Shift” or “Permanent Night Shift”.

[51] The concerns held by the Commission about the clause are for Registered and Enrolled Nurses and do not arise for Personal Care Workers and HASA Employees. While the Agreement’s provisions for these employees suffers from similar ambiguity as for Nurses, Clause 47.1 ultimately provides that a loading is paid sufficient to ensure the rate for the employee is equal to or exceeds the remuneration they would have received if employed under the Award.

[52] Mr Rahilly’s response to the Commission’s concerns on the subject of the Commission’s concerns about weekend payments to casual Registered and Enrolled Nurses included him questioning the reasoning of the Full Bench in ANMF v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care 18 (Opal) on the subject of whether a casual employee is entitled to be paid for weekend work both the weekend penalty and the casual loading.19 However, it was also the case that the view casual Registered Nurses were ineligible under the Agreement to be paid the casual loading for weekend work was without foundation:

“This matter appears to be concerned with the payments to be made to casual nurses for work performed on weekends. The first comment I would make concerns the comment in your email that “it would appear that RNs do not receive casual loading at all for weekend work”. In my submission there is nothing in the Agreement which suggests that this is the case and to my knowledge there is nothing to suggest that any casual employee under the Agreement is not entitled to the casual loading on any hours they work. Having said that, I have looked at the impact of the Opal decision and its methodology in the context of the BOOT and it would appear that there are no nursing classifications which are affected in relation to weekend work performed on a Saturday however a limited number of classifications are impacted for work performed on a Sunday AM/morning shift. However, the impact is obviously greater where the employee only works the Sunday shift in a week. Where the employee works another non- Sunday shift in the week of an equivalent number of hours the Agreement employee will be better off than the equivalent Award employee. The classifications affected are the RN Grade 1 and the RN Grade 2 year 1 and the EN Pay Points 3 and 4. That being the case I would suggest that a further extension to the reconciliation proviso contained in Clause 47.1 of the Agreement would adequately deal with this issue. My client is prepared to provide an undertaking to give effect to this in the form attached.” 20

[53] As recorded above, the Applicant proposed to resolve the issue through the giving of an undertaking, the operative parts of which are underlined below:

“2. In respect to Clause 47.1 of the Agreement, that provision will be applied as if the reference to 160% was a reference to a figure of 164.5% and the following further proviso were included:

[54] The Opal decision concerned an appeal against the approval of an enterprise agreement on several grounds, including contentions surrounding the BOOT, and particularly in relation to assistants in nursing employed on a casual basis and called upon to work overtime, weekends and on public holiday. In that matter, the Full Bench majority noted about the matters under appeal that:

“The ANMF contended that, under the Award, the overtime, weekend and public holiday penalty rates for casuals are calculated on the casual rate, but under the Agreement these are calculated at the ordinary rate, with the casual loading added afterwards. In the result these casual employees are not better off overall under the Agreement. Opal says that penalty rates under the Award are calculated on the base rate, in the same way as under the Agreement, and that all employees are better off under the Agreement because of the higher base rate of pay.” 21

[55] The Full Bench Majority records Commissioner McKinnon having decided these matters at first instance:

“[15] In her November Decision, the Commissioner noted that she considered the rate of pay for the ‘no qualification’ assistant to be too low, and accepted an undertaking that would afford employees at this level the Award rate of pay. Her concern related to the base rate of pay for this classification, rather than the loaded rates that might be received by a person at this level. The Commissioner noted however that the parties had disagreed about the correct analysis of rates of pay for casual employees under the Award 9 and specifically whether under the Award weekend, public holiday and overtime penalties were calculated on the loaded casual rate, or on the ordinary rate of pay without the casual loading. She said the following:

“[22] There is a dispute between the parties about whether the 25% casual loading is paid on all hours worked under the relevant modern awards, including where other loadings or penalties are paid. Opal says the casual loading is only paid on ordinary hours of work while the ANMF says the casual loading compounds on other penalties including overtime (but not shift allowances). The ANMF says as a result, the Agreement is less beneficial than the relevant modern awards.

[23] Clause 10.5 of the Agreement provides for the casual loading to be paid on ordinary hours. Shift, public holiday and weekend penalties are calculated on the ordinary rate of pay excluding casual loading and the casual loading is then added to the penalty rate of pay. The casual loading is not compounded by penalties in the Agreement.

[24] Clause 10.4 of the Nurses Award is similar to the Agreement. Casual employees are paid an “hourly rate equal to 1/38^th of the weekly rate appropriate” to their classification “plus a casual loading of 25%”. Shift allowances are calculated on the ordinary rate of pay excluding casual loading, with the casual loading then added to the penalty rate of pay. Weekend and public holiday penalties are calculated on the loaded casual rate of pay, which is the “ordinary rate of pay” for casual employees (clauses 10.4, 26 and 32). Overtime penalties are also paid on the loaded casual rate of pay because the Award simply provides for “time and a half”, “double time” and “double time and a half” as the case may be (clause 32) and does not exclude payment of casual loading on those rates.” 22

[56] The Full Bench then turned to determination of the matters in dispute:

“[16] Of central importance is the Commissioner’s conclusion that, under the Award, casual employees who work on a weekend and public holiday receive the applicable weekend and public holiday penalty calculated on the loaded casual rate of pay, as the ANMF contended. The relevant provisions of the Award are as follows:

10.4 Casual employment

(a) A casual employee is an employee engaged as such on an hourly basis.

(b) A casual employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to the employee’s classification plus a casual loading of 25%.

(d) A casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.

26. Saturday and Sunday work

26.1 Where an employee is rostered to work ordinary hours between midnight Friday and midnight Saturday, the employee will be paid a loading of 50% of their ordinary rate of pay for the hours worked during this period.

26.2 Where an employee is rostered to work ordinary hours between midnight Saturday and midnight Sunday, the employee will be paid a loading of 75% of their ordinary rate of pay for the hours worked during this period.

28.1 Overtime penalty rates

(a) Hours worked in excess of the ordinary hours on any day or shift prescribed in clause 21—Ordinary hours of work, are to be paid as follows:

(i) Monday to Saturday (inclusive)—time and a half for the first two hours and double time thereafter;

(ii) Sunday—double time; and

(iii) Public holidays—double time and a half.

(b) Overtime penalties as prescribed in clause 28.1(a) do not apply to Registered nurse levels 4 and 5.

(c) Overtime rates under this clause will be in substitution for and not cumulative upon the shift and weekend premiums prescribed in clause 26—Saturday and Sunday work and clause 29—Shiftwork.

32.1 Payment for work done on public holidays

(a) All work done by an employee during their ordinary shifts on a public holiday, including a substituted day, will be paid at double time of their ordinary rate of pay.

[17] Clause 10.4(b) of the Award says that a casual employee will be paid an hourly rate equal to 1/38^th of the weekly wage plus a casual loading of 25%. On a plain reading of the clause, the hourly rate includes the loading; the loaded casual rate is the ‘ordinary rate of pay’. When a casual employee works ordinary hours on a Saturday or Sunday, clause 26 of the Award requires the weekend loading to be applied to the ordinary rate of pay. For casual employees, this rate is the casual rate. The same is the case with the public holiday penalty in clause 32.1.

[18] Furthermore, clause 10.4(d) makes very clear that casual employees are paid shift allowances on the ordinary rate of pay ‘excluding the casual loading’, with the casual loading then added to the penalty rate of pay. No such exclusion is made in respect of other penalties. …

…

[22] We note that the penalty rates that apply to Saturday and Sunday work, and the triggers for overtime at time and a half and double time, are essentially the same under the Award and the Agreement. However, under the Agreement, most employees receive double time for overtime on a public holiday, whereas the Award provides for double time and a half. The Agreement provides that casual employees are paid overtime penalties in accordance with clause 26(a) of the Agreement, which are ‘in substitution for and not cumulative upon the casual loading’ (cl. 26.1(d)). Clause 24(d) of the Agreement provides that ‘casual employees will be paid weekend penalties calculated on the ordinary rate of pay, excluding the casual loading. The casual loading component will then be added to the penalty rate.’ In these respects, the Agreement states expressly what the Award does not say expressly or impliedly, namely that these penalties are not calculated on the loaded casual rate.

[23] The Commissioner’s analysis of the Award provisions concerning casual rates of pay and penalty rates for weekend, public holidays and overtime was correct. It is then necessary to consider how the Commissioner applied that analysis to the circumstances of employees covered by the Agreement. As noted earlier, the Commissioner illustrated her interpretation of the Award by setting out its application to ‘assistant in nursing, advanced’. She concluded that, although the overtime rate for this classification was less favourable than the Award, the employees were still better off under the Agreement than under the Award because of the higher ‘ordinary’ casual rate.” 23

[57] The Applicant’s submissions in this matter may be summarised as the proposition that Opal was wrongly decided on the matter of casual penalties. Further, if that is not the case that anything in the Agreement suggests casual employees are not entitled to receive the causal loading on any hours they work; and that such difficulties as arise may be offset through the undertaking given above.

[58] In relation to the invitation from Mr Rahilly that I depart from and not apply the Opal reasoning, I decline. While heeding the caution within Opal that application of “an interpretative presumption” should be avoided, the words of this Agreement and the Nurses Award, analysed by me above, cause me to form the view that in the case of this matter that there is no relevant ambiguity about the treatment of the casual loading in overtime payments under the Award, but that there is in the Agreement.

[59] I do not accept the proposition advanced by Mr Rahilly that “there is nothing to suggest that any casual employee under the Agreement is not entitled to the casual loading on any hours they work”. 24 Such submission would ask me to set aside the evident matters of uncertainty referred to above. The fact that there has been no meaningful response to the Commission’s concerns about the subject allows the view that the ambiguity about the Agreement’s provisions is what is intended and that it is not in the Applicant’s interests to clarify the matter.

[60] Finally, I do not accept that the undertaking given will resolve the problems identified. While it may go part of the way in resolving the observable detriments, but not as far as would be required, it does nothing to resolve the ambiguities identified above. As long as they persist, I would be concerned that implementation of the Agreement would be in such a way as to cherry-pick interpretations favourable to the employer without having regard to the payments which would be due to an employee if interpretations favourable to the employee were taken.

Items 11 and 12 – Clause 46 Casual Nurses overtime; overtime outside of span

[61] Two matters of concern were raised by the Commission in relation to Clause 46 (Overtime).

[62] The first was that the clause does not appear to explicitly provide that overtime for casual Registered and Enrolled Nurses is calculated on the loaded rate of pay. The Commission was concerned that this posed a BOOT issue for some employees depending on the amount of overtime worked. In response, the Applicant submitted that it is unclear whether casual Registered and Enrolled Nurses are entitled to overtime penalties at all. 25

[63] The second concern was that while Clause 46.3 (Enrolled Nurses and HASA Staff) related to what was characterised in the concern as a lack of clarity about overtime outside a 12-hour span of ordinary hours, when the Agreement did not appear to provide for a span of ordinary hours. The Applicant submitted that such concern relied upon a misreading of both the Agreement and the Aged Care Award:

“In relation to this matter, the first thing I would say is that working outside the span of hours does not attract any entitlement to overtime payments either under the Agreement or the Aged Care Award 2010. The only thing which work outside the span of hours for a day worker attracts is an entitlement to payment of shift allowances/penalties. The second thing is that to the extent that your email is referring to the provision contained in the second dot point of Clause 46.3 of the Agreement, it would be my submission that that provision does not establish a span of hours for a day worker. The span of hours for a day worker is established under the provisions of Clause 49.1 which prescribes a shift allowance/penalty for ordinary hours of work commencing before 6.30am or finishing after 6.00pm on any day of the week. Accordingly, work performed between those hours are the span of hours for a day worker during which no shift allowance/penalty is payable. The provision in Clause 46.3 of the Agreement speaks of “as overtime outside a spread of twelve hours from the time of commencing the last previous rostered period of duty”. What this provision is doing is making it clear that as the hours fixed for a day’s work under Clause 45.1 can be 10 hours if an employee works beyond 12 hours from commencement the overtime penalty is double time. Clearly, as set out in the first dot point any hours worked between 10 and 12 hours are payable at time and a half.” 26

[64] The provisions in question are in these terms

“46.2 Registered Nurses

Except in the case of a Director of Nursing where a Deputy or Assistant Director of Nursing is also employed, all work done by a Registered Nurse in excess of the number of ordinary full-time rostered hours, as per Clause 45 shall be paid at the rate of time and a half for the first two hours and double time thereafter, or otherwise in accordance with the attached table. For the purpose of this clause each day or shift shall stand alone.

Registered Nurses
Day	First 2 Hours	Thereafer
Weekday	Time and a Half	Double Time
Weekend	Double Time	Double Time
Public Holidays	Double Time	Double Time
Weekend Public Holidays	Double Time	Double Time

46.3 Enrolled Nurses and HASA Staff

In the case of an Enrolled Nurse or HASA Employee, the following overtime rates shall be paid (or otherwise in accordance with the attached table) for all work done:

• in excess of the number of hours fixed as a day, a week or a fortnight��s work as the case may be (as per Clause 45 - Hours of Work) - time and a half for the first two hours and double time thereafter;

• as overtime outside a spread of twelve hours from the commencement of the last previous rostered period of duty provided that the overtime is not continuous with the next succeeding period of duty - double time; or

• outside a spread of nine hours from the time of commencing work by an employee rostered to work broken shifts - time and a half, and outside a spread of twelve hours from the time of commencing work - double time.

Enrolled Nurses and HASA
Day	First 2 Hours	Thereafter
Weekday	Time and a Half	Double Time
Weekend	Double Time	Double Time
Public Holiday	Double Time and a Half	Double Time and a Half
Weekend Public Holidays	Double Time and a Half	Double Time and a Half

[65] The Commission’s first concern about Clause 46, that it lacks clarity by not specifying that overtime for casual nurses will be calculated on the loaded rate of pay is mirrored, unintentionally or not, by the Applicant’s contention that it is unclear whether a casual Enrolled or Registered Nurse are entitled to overtime penalties at all.

[66] The Applicant’s submissions on the subject included the contention that while overtime under the Nurses Award is payable in excess of the ordinary hours on any day or shift, each limited to a maximum of 10 hours, “it is interesting to note that Clause 28.1(a) of the Award does not appear to provide that hours worked in excess of the full-time ordinary hours in a week, a fortnight or a 28 day period will attract overtime penalties as 28.1(a) is clearly limited to the “ordinary hours on any day or shift”. However, be that as it may, it is clear that under the Award overtime is only payable to a part-time employee (and possibly a full-time employee) when they work in excess of 10 hours on “any day or shift” and that is because that is what the Award defines as ordinary hours. In view of this, how can it be said that a casual employee is entitled to overtime penalties which are clearly attracted by working in excess of ordinary hours when a casual employee is not engaged, by definition, to work ordinary hours.” 27

[67] Further, it was argued that:

“.. due to the fact that a casual employee is not engaged to work ordinary hours, Clause 28.1(a) of the Award cannot be “triggered” under any circumstance by a casual employee. This, in my submission, is yet another reason why the Opal decision is patently wrong and should not be followed. Having said that, and in the alternative, should the Commission maintain the Opal decision that casual nurses are entitled to overtime and the same applies under the Agreement what is clear is that any overtime entitlement which arises for an employee under the Agreement will apply at an earlier time on any day or shift where the ordinary hours are exceeded. This is because Clauses 46.2 and 46.3 provide that overtime is payable, in the case of 46.2, for work “in excess of the number of ordinary full-time rostered hours, as per Clause 45…” and in the case of 46.3 for all work done “in excess of the number of hours fixed as a day, a week or a fortnight’s work as the case may be (as per Clause 45 - Hours of Work) …”. Clause 45.1 of the Agreement sets out the “triggers” for the payment of overtime penalties as follows:

“45.1 The hours for an ordinary week's work shall be 38, or be an average 38 per week in a fortnight or in a four week period (or by mutual agreement, a five week period in the case of an employee working ten hour shifts) and shall be paid either:

(a) in a week of five days in shifts of not more than eight hours each; or

(b) by mutual agreement in a week of four days in shifts of not more than ten hours each; or

(d) in 76 hours per fortnight to be worked as not more than ten days of not more than eight hours each; or

(e) in 152 hours per four week period to be worked as nineteen days each of eight hours.”

In view of these provisions and given that the rostering of 10 hour shifts under the Agreement is rare and only ever likely to occur on night shift the incidence of overtime for exceeding the ordinary hours on any day or shift will occur when 8 hours is exceeded on a day and this is to be compared to the position under the Award, namely, that 10 hours must be exceeded before overtime is payable. So, from a BOOT perspective, it would appear that an Agreement employee who exceeded 10 hours on any day would be receiving overtime payments for the hours worked beyond 8 hours while the Award employee would be earning the base casual rate for such hours. If, for the sake of this comparison, it was assumed that the employees concerned worked for a period of 12 hours, the Agreement employee would be entitled to the casual rate (ie. 1/38th of the weekly rate plus 25%) for the first 8 hours worked, overtime payments at the rate of time and a half of the unloaded weekly hourly rate from the expiration of 8 hours until 10 hours have elapsed and then a further 2 hours overtime at double time of the unloaded weekly hourly rate between 10 and 12 hours. On the other hand, the Award employee would be entitled to 10 hours at the base loaded casual rate plus overtime at the overtime rate between 10 and 12 hours or 2 hours at time and a half of the loaded casual rate.” 28

[68] I also take into account that the matter of overtime for casual employees has been the subject of some consideration in the Commission’s Award Modernisation processes, but as yet, nothing has come of that. While the Full Bench has noted the matter of overtime for casuals is an outstanding matter in both the Aged Care Award and the Nurses Award 29 and was outstanding in 2019, the matter has not progressed beyond filing Directions being issued.

[69] For the reasons set out above, I am not disposed to accept the Applicant’s invitation to depart from the Opal reasoning. The operation of the Award on these matters is indisputably clear, and no part of the Applicant’s submissions has established that an alternative construction is reasonably open to me.

[70] The core of what by Mr Rahilly set out above is that 10 hour shifts are rare, and that if overtime occurs it will more likely be after the end of an 8 hour shift, and that since the Nurses Award allows 10 hours to be worked before overtime payments are due, no detriment reasonably arises for a Registered or Enrolled Nurse working under the Agreement. There is no reason in the material before me to dispute the comparison between when overtime may commence under the Agreement and the Award; likewise, there is no reason in the material before me to not accept the low incidence of overtime to be worked. Rebuttal of such submissions would require detailed information about rosters that were actually worked.

[71] However, acceptance of what the Applicant has put forward in this regard does not dispose of the Commission’s concern. The Applicant’s proposition that there is no detriment only arises if one accepts that casual Registered and Enrolled Nurses are entitled to overtime with the relevant calculation including the casual loading – a matter which is fiercely resisted by the Applicant’s representative. While I may be disposed to accept the incidence of overtime is low and the likely detriment lower, employees working under this Agreement are, at the least, entitled to precision about their benefits.

[72] In relation to the second of the matters set out above, the matter of the Agreement lacking clarity about the payment of overtime for work outside a 12-hour span of ordinary hours, Clause 46.3, second bullet point, must reasonably be read as providing that an overtime rate of double time is to be paid when the total hours of work for a shift are more than 12 from the time the person started work. In comparison, a day worker under the Aged Care Award would move to overtime in certain circumstances if their hours of work in addition to those rostered were outside the span of 6.00 am to 6.00 pm Monday to Friday and greater than 8 hours on a day shift. The same clause though provides that an employee regularly rostered outside the ordinary hours of a day worker will be a shiftworker, entitling them to different penalties (Clauses 22.1 – 22.2). The same provisions apply to employees working under the Nurses Award, albeit that the maximum shift length or ordinary hours of work per day are 10 hours (Clauses 21.2, 22.1 – 22.2).

[73] It is obvious that this feature of the Agreement may be a detriment to some employees in some circumstances, and especially where an employee otherwise under the Aged Care Award worked more than 8 hours on day shift, or one under the Nurses Award worked more than 10 hours. It may be inferred from the Agreement as a whole that the clause as drafted is intended to provide a benefit for the employer, in the form of granting as much flexibility as possible. That being the case, a detriment will accrue to any employee whose circumstance is affected by the clause. Other than the wages of the Agreement, there is no offsetting benefit to such employee because they worked longer than 8 or 10 hours as the case may be. That being said, the Applicant’s contention that there is likely no actual detriment to employees because of the rarity of overtime on weekends is potentially accurate; however, such could only be established through an examination of evidence about hours actually worked.

BOOT conclusions

[74] Two forms of BOOT concerns persist and have been considered above; the matter of payment of the casual loading for weekend work by Registered and Enrolled Nurses; and the calculation of overtime payments for the same employees. The product of the foregoing analysis is a conclusion that, depending on rosters actually undertaken, not all Registered Nurses and not all Enrolled Nurses will be better off under the Agreement.

[75] The margin between the Agreement wage rates and the Award wage rates varies for different classifications, however at the lower ends of the classifications especially, the higher ordinary weekday rates for casual nurses may not be sufficient to adequately buffer the less beneficial aspects of the Agreement.

[76] The weekly wage rate for an Enrolled Nurse Level 1, pay point 1 under the Nurses Award is $878.50, effective from 1 July 2019, with the classification equating on the Applicant’s classification translation scale to Enrolled Nurse Level 1, for which the weekly wage rate is $990.00, effective from 1 December 2019. If such an employee only worked day work on Saturday and Sunday, or worked Sunday and two weekday day shifts, then, depending on the length of time they worked on each day, the employee would not be financially better off under the Agreement. The situation would likely be exacerbated if weekend overtime was worked. It is to be noted that I do not have before me sample rosters, so necessarily have had to make inferences about what may be.

[77] The situation of Enrolled Nurses is somewhat different, and it is possible that actual rosters show employees are not worse off. The weekly wage rate for a Registered Nurse Level 1, Paypoint 3 under the Nurses Award is $982.60, effective from 1 July 2019, with the classification equating on the Applicant’s classification translation scale to Registered Nurse Grade 2, Year 1, for which the weekly wage rate is $1104.30, effective from 1 December 2019. If such an employee only worked day work on Sundays, they would not be better off under the Agreement. The situation would likely be exacerbated, and potentially for other shift combinations, if weekend overtime was worked. I note again that consideration of actual rosters may lead to a different view.

[78] Nonetheless, it is apparent from consideration of the provisions applicable to Registered and Enrolled Nurses that I am not, on the material before me, satisfied that all employees in those classifications will be better off under the Agreement. It follows I am not satisfied the Agreement passes the better off overall test (s.186(2)(d); s.193(1)).

CONCLUSION

[79] As set out in detail above I have considered this application on the basis of the undertakings and submissions filed and the oral submissions provided in the hearing. I have determined that the Agreement does not meet the better off overall test in accordance with s.186(2)(d) and s.193 of the Act and that it contains terms which are detrimental when compared to the NES (s.186(2)(c)). It also does not define a shiftworker as required for the purposes of the NES (s.187(4) and s.196).

[80] Although the Applicant indicated a preparedness in the hearing to give a further undertaking in relation to Clause 6 I am not disposed to seek one on that matter alone and am also not disposed to return to the Applicant on the other matters I have determined in this decision. There has been sufficient communication with the Applicant and its representative about the Commission’s concerns but insufficient preparedness to provide material that would assist in approval of the Agreement. In these circumstances I consider I have provided the Applicant with a reasonable opportunity to provide submissions and undertakings which might resolve these concerns. The Applicant has had the opportunity to provide further or alternative undertakings on these matters, however, has not provided any in suitable terms. The Agreement must therefore be regarded through this decision as not having met the requirements of the Act.

[81] The application for approval of the NDN Care Services Pty Ltd (trading as Delladale Aged Care), ANMF and HSU Enterprise Agreement 2017 is therefore dismissed. An order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr M. Rahilly for the Applicant
Ms S. Bonavia for the ANMF

Hearing details:

2020.
Melbourne;
28 April (via telephone).

Printed by authority of the Commonwealth Government Printer

1 Applicant’s Submissions, 10 February 2020, item 3.

2 Ibid, item 4.

3 AP790805CRV; AP783872CRV.

4 Applicant’s Submissions, 10 February 2020, item 5.

5 Ibid, item 12.

6 Ibid, item 2.

7 Ibid.

8 Explanatory Memorandum to the Fair Work Bill 2008.

9 Applicant’s Submissions, 10 February 2020, item 3.

10 Audio File of Hearing, 28 April 2020, at 25 minutes.

11 Ibid, at 7 minutes.

12 Applicant’s Submissions, 10 February 2020, item 4.

13 See Mondelez Australia Pty Ltd [2018] FWCA 2416; see also Mondelez Australia Pty Ltd [2018] FWC 2140, [19].

14 Ibid.

15 CEPU v Main People Pty Ltd[2015] FWCFB 4467, [38]; see also Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd[2017] FWCFB 1664, [44].

16 See for example the contentions referred to in Leading Age Services Australia NSW – ACT [2014] FWCFB 129, from [19]; Bupa Care Services Pty Limited v New South Wales Nurses and Midwives' Association[2017] FWCFB 1093, from [27].

17 Note that Undertaking 4 modifies this reference by providing that it “will be applied as if the reference to “Public Holidays” contained therein were omitted”.

18 [2019] FWCFB 1716.

19 Applicant’s submissions, 10 February 2020, items 9 – 10.

20 Ibid.

21 ANMF v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care[2019] FWCFB 1716, [6], per Gostencnik and Colman DPP.

22 Ibid.

23 Ibid.

24 Applicant’s Submissions, 10 February 2020, items 9 and 10.

25 Ibid, item 11.

26 Ibid, item 12.

27 Ibid, item 11.

28 Ibid.

29 4 yearly review of Modern Awards [2017] FWCFB 6417; [2019] FWC 8318.