Noel Bartone

[2014] FWC 2402

[2014] FWC 2402

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 9 Sch. 5—Take-home pay

Noel Bartone
(C2013/6441)

COMMISSIONER DEEGAN CANBERRA, 10 APRIL 2014

Application for take home pay order

[1] This is an application by Mr Noel Bartone (the applicant) for an order to remedy a reduction in take-home pay under Schedule 5, Item 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The applicant is a personal carer employed by Mercy Health and Aged Care Inc Ltd Liability (Vic) (the employer) in Canberra, under the provisions of the Social, Community, Home Care and Disability Services Industry Award 2010 1 (the modern award).

The Legislation

[2] Item 8 of Schedule 5 of the Transitional Act provides:

Part 3 - AVOIDING REDUCTIONS IN TAKE-HOME PAY

8 Part 10A award modernisation process is not intended to result in reduction in take-home pay

(1) The Part 10A award modernisation process is not intended to result in a reduction in the take-home pay of employees or outworkers.

(2) An employee’s or outworker’s take-home pay is the pay an employee or outworker actually receives:

(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but

(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if:

(a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and

(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and

(c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and

(d) that reduction in the employee’s take-home pay is attributable to the Part 10A award modernisation process.

Background

[3] The background to this application, was set out, as follows, in the written submissions of the employer, and is not in dispute:

1) Mr Bartone is employed by the Mercy Health and Aged Care as a casual Personal Care Worker (Carer). He is covered by the Social Community Home Care and Disability Services Industry Award 2010 as a Home Care Worker Level 3. Under that award he is currently entitled to be paid $19.33 per hour with a casual loading of 24% equating to a casual hourly rate of $23.9692.

2) Mr Bartone was covered by the Community Services (Home Care) ACT Award 2002 prior to 1 January 2010. His classification under that Award was as a Personal Carer.

3) Prior to the modern award Mr Bartone was entitled to the minimum wage of $18.09 per hour plus a casual loading of 20% equating to a casual hourly rate of $21.708.

4) Mercy Health applied the Community Services (Home Care) ACT Award 2002 including payment for travel where the distance between the carer's home and client's home exceeded 1Okm.

5) At the end of 2009 Mr Bartone was being paid $65.124 for each three hour shift he worked as a carer for the client in question. At this time he worked shifts of varying lengths with this client. This figure included the casual loading but did not include travel allowance because the client at that time lived within 10 kilometres of the client's residence. Mr Bartone was being paid travel allowance in relation to travel between clients due to his working with multiple clients in a week.

6) Early in 2010 the client relocated to be more than 10 kilometres from Mr Bartone's residence and Mercy Health commenced payment of travel allowance to reflect this.

The Applicant’s Case

[4] According to the application the employer, from the first pay after 1 July 2013, altered the manner in which it paid travel allowances to accord with the relevant provisions of the modern award. The applicant claimed that, as a consequence of this change, he experienced a reduction in his take home pay. The applicant stated that the essential difference was that under the previous award he was entitled to be paid a travel allowance in circumstances where the distance from his home to his first job exceeded 10 kilometres. No such allowance is payable under the modern award.

[5] As the applicant is a casual employee and accepts shifts for only one client of the employer, his take home pay was significantly reduced by the loss of the allowance, as the client’s residence is more than 10 kilometres from the applicant’s home. Evidence was produced by the applicant to show that difference in his fortnightly take home pay upon the modern award travel allowance provisions being applied, amounted to $61.70 for eight identical three hour shifts. The reduction in the travel allowance was offset, to some degree, by an increase to the base rate and the percentage casual loading which took effect on 1 July 2013.

The Employer’s Case

[6] The employer’s position is that any reduction in the applicant’s take-home pay is due to variations to the quantity of work or pattern of work that occurs due to the casual nature of the work, the changing needs of the client and the particular work that the applicant elects to accept. The employer noted that the pattern of work undertaken by applicant had changed significantly since July 2010. The applicant had elected to accept fewer engagements and fewer clients. It was noted that since December 2012 the applicant had accepted only shifts with one particular client. It was argued that the applicant’s decisions concerning the acceptance of work had been made since the implementation of the modern award and had had the effect of  increasing the applicant’s take home pay as the work accepted with the one remaining client required more travelling.

[7] The employer noted that in early 2013 it undertook at review of its ACT operations and identified that the way in which rosters were being arranged made the operations unsustainable. A decision was taken to alter the way personal care workers were rostered so as to cluster them with clients closest to their place of residence. This change reduced both the time spent travelling and the cost to the employer. According to the employer the previous method of rostering made the service financially unviable. The applicant did not participate in the roster clustering and, while the employer had not previously required that he do so, it advised that he may be required to participate in such rostering in the future.

[8] The employer’s evidence was that under the modern award the applicant is paid an hourly rate of $23.9692, inclusive of a 24 % casual loading. According to the employer, under the previous award the applicant’s hourly rate was $ 18.09, with a 20% casual loading equating to an hourly rate of $21.708. 2

[9] The employer argued that while the applicant’s take home pay had decreased upon it commencing to apply the travel allowance provisions of the modern award, the reduction was actually brought about as a result of the applicant’s decision to accept work from only one client, who resided more than 10 kilometres from the applicant’s home but who had moved to that address in address in April 2010. It was the employer’s submission that the reduction was not, therefore, attributable to the part 10A award modernisation process.

[10] Further, it was put for the employer that Item 10(1) provides that the Commission must not make a take home pay order if it is ‘satisfied that the employee...(has) been adequately compensated in other ways for the reduction.’ In this respect it was noted that, in 2013, the employer adopted a policy designed to reduce travel costs for employees by implementing clustered rosters. The applicant had indicated that he did not wish to participate in the clustered roster. It was put that had he participated he would have been adequately compensated by the commensurate reduction in travel that would have come with his participation. According to the employer, were the Commission to issue the order sought it would create a situation whereby an individual refusing compensation could continue to receive the benefit of the previous arrangement and block the employer from making a change that it is entitled to do under the award. It was the employer’s position that the travel allowance in the pre-modern award provided an additional incentive for individuals to travel to clients who lived more that 10 kilometres from their residence.

Consideration

[11] The applicant put, and the employer did not dispute, that travel allowance is a component of ‘take home pay’ for the purposes of Item 8 of Schedule 5 of the Transitional Act.

[12] It is apparent that the travelling allowance payable to the applicant under the modern award is less than that that would have been payable under the pre-modern award on. It is also apparent that if the modern award travelling allowance had been implemented on 1 January 2010, when the modern award came into operation, the applicant would not have suffered a reduction in the travelling allowance payable for the shifts he worked at that time as his current client did not, in January 2010, reside more than ten kilometres from his home.

[13] The applicant made it clear that he had no interest in accepting other clients from the employer and wished only to continue to provide services for the one client with whom he had developed a particular rapport. He accepted that the client had moved to his new residence after the modern award commenced to apply to him (albeit before the employer commenced to pay in accordance with the travel allowance provisions under the modern award).

[14] While I am satisfied that, for the purposes of item (8)(3)(a) that the modern award started to apply to the applicant when it came into operation and the applicant was employed in the same position that he was employed in immediately before the modern award came into operation (item 8(3)(b)), I am not satisfied that the applicant meets the requirement of item 8 (3)(c). This item requires ‘the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation’ to be ‘less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation’.

[15] In my view the applicant’s take home pay under the modern award is not less that he was receiving for the ‘those hours or that quantity of work immediately before the award came into operation.’ The travel allowance does not relate to a particular number of hours or a particular quantity of work. The allowance under the pre-modern award is related solely to the distance between the applicant’s home and his client. It is not a factor of the time taken to travel the distance to the client’s home but was based solely on the number of kilometres travelled. Under the modern award the applicant’s rate of pay actually increased for the hours worked and quantity of work.

[16] As the applicant does not meet the requirement of Item 8(3)(c) the application is dismissed.

In the alternative

[17] If I am wrong in relation to my characterisation of the travel allowance for the purposes of Item 8(3)(c), I am not satisfied that the applicant’s situation meets the requirement set by Item 8(3)(d) as being attributable to the Part 10A Award Modernisation process.

[18] The applicant’s situation is complicated by the fact that the employer did not commence to apply the modern award travel allowance to the applicant until 1 July 2013, despite the new provision having come into operation on 1 January 2010. Had the new provision been applied to the applicant on that date no claim for a take home pay order could have been made as the applicant’s current client did not, at that time, reside more than 10 kilometres from the applicant’s home and the applicant had no entitlement to the travel allowance under the pre-modern award. At the time the applicant’s client changed his residential address the modern award had taken effect and the applicant had no award entitlement to the enhanced travel allowance payment under the previous award.

[19] The applicant’s claim does not meet the requirement of Item 8(3)(d) and is dismissed.

Conclusion

[20] The application for a take-home pay order under Schedule 5, Item 9 of the Transitional Act is dismissed.

Appearances:

Applicant in person.

Ms K Horner and Ms C Woods with Ms G Gillies for the employer

Hearing details:

2013.

Canberra:

November 14.

2014.

Canberra:

February 3.

Final written submissions

17 February 2014.

 1   MA000100.

 2   A check of the previous award indicates that the employer may have overstated the base rate applicable to the applicant.

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<Price code C, PR549529>