Regis Aged Care Pty Ltd T/A Regis Aged Care

[2019] FWC 6557

[2019] FWC 6557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Regis Aged Care Pty Ltd T/A Regis Aged Care
(AG2018/7129)

Health and welfare services
COMMISSIONER WILSON	MELBOURNE, 19 SEPTEMBER 2019

Application for approval of the Regis Aged Care Registered Nurses, Enrolled Nurses & Assistants in Nursing, Queensland Agreement 2018. Whether employees better off overall; consideration of undertakings. Additional undertaking requested in order Commission satisfied employees are better off overall.

[1] An application has been made for approval of an enterprise agreement known as the Regis Aged Care Registered Nurses, Enrolled Nurses & Assistants in Nursing, Queensland Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Regis Aged Care Pty Ltd (Regis). The Agreement is a single enterprise agreement.

[1] The Queensland Nurses and Midwives' Union (QNMU), a branch of the Australian Nursing and Midwifery Federation, opposes approval of the Agreement on several grounds associated with whether the Agreement passes the better off overall test putting forward that the Commission cannot be satisfied the better off overall test has been passed (the BOOT). It argues that this remains the case even after undertakings proffered by Regis have been taken into account. The union though does not say that the Agreement is incapable of passing the BOOT with the giving of undertakings, but merely that those put forward by Regis are insufficient on this occasion.

[2] Pointedly, on 9 August 2019, the QNMU advised the Applicant through open correspondence also provided to the Commission that “Our Branch Secretary, Beth Mohle, has decided she will sign the Regis Agreement on behalf of the Union only if Regis makes all of the s.190 undertakings we have sought from Regis.” That statement is understood to relate to correspondence the QNMU sent to the Commission on 12 June 2019 in which it expressed pessimism that the undertakings proposed by the Commission would ensure every employee covered by the Agreement would be better off under it, rather than under the Nurses Award 2010 (the Award) and in which it then set out the terms of undertakings that would be acceptable to the union.

[3] On 7 August 2019 when it became clear that the parties’ discourse was unlikely to reach consensus over the content of the undertakings, the parties were directed to provide submissions and evidence in support of their respective cases. Each of Regis and the QNMU responded to the Directions. Neither sought to be heard on the application.

[4] In response to the Commission’s Directions, Regis advised it would rely upon its most recently filed undertakings as its submissions.

[5] In its submissions, the QNMU identified several matters as objections it maintained against approval of the Agreement. Those submissions may be summarised as being that the Commission is unable to be satisfied the BOOT has been passed because of “three significantly less beneficial terms”:

•  The potential for the reduction of hour and wages of part-time employees;

•  Potential detriment arising from the use of broken shifts; and

•  Loss of income if employees are required to work through meal breaks.

[6] The QNMU also submit that Regis’ proposed removal of the wage rates shown for Registered Nurse Levels 4 and 5 (in response to a BOOT concern expressed by the Commission) is not permissible.

[7] The material before the Commission records that there were no employee bargaining representatives and only one union bargaining representative, being the QNMU. Further, at the time of the vote the Agreement covered 2071 employees. Of those 1149 employees cast a ballot vote with 922 employees voting in favour of the Agreement, thus with the ballot passing at around 80% of employees who voted.

[8] Regis began bargaining for the Agreement on 23 March 2018 with the notice of employee representational rights (NERR) being issued to all employees to be covered by the Agreement six days later on 29 March 2018 by way of email as well as being placed on notice boards in staff rooms and work stations (s.173(3); s.181; s.186(2); s.188). 1 On 16 November 2018, employees were provided a copy of the Agreement and incorporated materials, a letter inviting them to vote which included the details of the vote, a summary of the key terms of the Agreement and a document with frequently asked questions (s.180(2)(a); s.180(3)).2 Between 19 and 23 November 2018, the employer made multiple presentations to staff at every Queensland site at which employees were covered by the proposed Agreement during which the terms of the Agreement and the effect of those terms were explained and employees were invited to ask questions all of which were responded to (s.180(5)).3 Commencement of the vote occurred on 3 December 2018, 17 days after notification of the vote and a copy of the Agreement and relevant materials were provided to employees (s.173; s.181; s.181(2); s.182), with the Agreement being made on 5 December 2018 when 80% of employees who cast a valid vote voted to approve the Agreement.4 The Agreement was then lodged 14 days later in the Commission on 19 December 2018 (s.182(1); s.185(3)).

[9] After the Agreement application was considered by the Commission’s agreement processing team the matter was assigned to me for determination. At that time the parties were advised that my preliminary consideration showed several, relatively low-level, concerns, identified as follows:

“FORMS

1. F18 QNMU: QNMU are named in the F16 however, no F18 has been provided to date.

2. Agreement signatures: Agreements lodged with the Commission must be signed by the employer and at least one representative of the employees and must also specify the following:

•  The full name of each person who signs the agreement;

•  The address of each person who signs the agreement; and

•  The position, title or status of each person who signs the Agreement (so that the Commission can be satisfied that the person has authority to sign on behalf of the employer or as a representative of employees covered by the Agreement).

The Agreement signature page does not appear to be signed. This concern can be addressed by filing a revised signature page that contains each of the relevant details listed above. The Agreement cannot be approved unless signed in accordance with the above requirements.

NES

3. Abandonment of employment (clause 10.7.1): The abandonment of employment provision at Clause 10.7.1 may be inconsistent with the National Employment Standards (NES) at section 117 of the Act (see Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]) in that it does not appear to provide for notice of termination. The Commissioner invites the employer to give an undertaking to the effect that clause 10.7.1 of the Enterprise Agreement will operate subject to the NES in that employees will receive notice of termination.

BOOT

The following issue(s) have been identified in relation to whether employees will be better off overall under the Agreement:

4. Rates of Pay: a Registered Nurse Level 5, Grade 4 appears to have rates below the Award. The Agreement does not provide classification descriptions for Registered Nurses Level 4 and 5 and q3.2 of the F17 provides that these employees are not employed under the EA. However, pay rates for Registered Nurses Level 4 and 5 have been provided in the Agreement for employees that are ‘Nursing staff excluding ex-MCQ and ex-BlueCare employees’ (see page 35).

Registered Nurse
Level 5 Grade 6	Level 5.4	$53.29	$51.20	-3.92%

5. Allowances: No on-call or travel allowance

6. Broken Shifts (clause 11.6): the Agreement provides for broken shifts whereas the Award does not as such this may result in employees having up to a 4 hour unpaid break. Clause 21.5 of the Award provides that an employee will not be required to work more than one broken shift in each 24 hours.

7. Span of hours: The Agreement does not provide a span of ordinary hours. The overtime provision (clause 15.1) in the Agreement provides that overtime rates apply outside the span of ordinary hours for day workers, as such it is unclear when overtime is applicable.

Please provide information on how employees will be better off overall under the Agreement taking into account these issues. You may also wish to consider undertakings to address one or more of the issues identified above.”

[1] Responses to each of these concerns were provided by Regis and, in particular, undertakings were proposed by the Applicant. Notwithstanding the proposal put forward by Regis, the QNMU objected to approval of the Agreement. There were several exchanges between the parties about the proposed undertakings. The final version of undertakings put forward by the Applicant on 16 August 2019 are set out in Attachment 1 to this decision. In the same correspondence Regis provided a copy of the signature page, signed by an employee covered by the Agreement and also addressed the Registered Nurse Level 5 wage rate matter identified earlier by the Commission in its “concerns” correspondence.

[2] Regis’ approach in relation to the Commission’s concern about the Registered Nurse Level 5 wage rate is to substitute a new wages schedule for that appearing in the Agreement made and then lodged in the Commission. The new wages schedule omits wage rates for Registered Nurses Level 4 and 5, with this being because “the proposed Agreement does not cover Level 4 and Level 5 Registered Nurses, and these classifications were included in the wage rate table in error”, further “employees who fall under Levels 4 and 5 of the Nurses Award 2010 are Facility Managers and Clinical Managers: these are senior managerial employees and accordingly, they are expressly excluded from coverage of the proposed Agreement under clause 6.2”. 5 Regis expressly seek that the Commission correct the indicated error pursuant to s.586 of the Act. Clause 6.2 of the Agreement as made provides:

“6.2 The Agreement does not apply to or cover Facility Managers, Clinical Managers or State Managers or any other state office employee employed by the Employer in Queensland.”

[3] In considering the application now before the Commission I am satisfied that with the exception of the question of whether the Agreement passes the BOOT (s.186(2)(d)) that each of the other requirements within s.186 as are relevant to the application for approval have been met and that each of the matters requiring consideration under ss.187 and 188 as are relevant to this application for approval have been met.

[4] Consideration of the application therefore turns to whether the Commission can be satisfied that the Agreement passes the BOOT. Observable from the “concerns” indicated to the Applicant by the Commission as well as the final undertakings shown in Attachment 1 is that most have a connection with the question of whether the Agreement passes the BOOT.

[5] The QNMU submits that it does not because of three features of the Agreement, as modified by the undertakings:

•  employees are not better off because of how the Agreement deals with hours and wages of part-time employees, dealt with in clauses 10.3, 10.4, 12.1 and 12.2 (for which no undertaking is given);

•  the broken shifts arrangements continue to leave employees worse off, notwithstanding undertaking 7; and

•  the wages arrangements for work performed during meal breaks remain inferior, notwithstanding undertakings 8 and 9.

[6] The Commission’s assessment of whether an Agreement passes the better off overall test requires an assessments of whether at test time (the date of lodgement, see s.193(6)), each award covered employee, and each prospective award covered employee, would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. Rather than a line by line analysis, it is a global test; it requires identification of more beneficial terms as well as less beneficial terms and in finality an overall assessment of whether each relevant employee would be better off under the agreement. 6 The task is an evaluative assessment involving a question of proportion and of weighing different considerations and the exercise of discretion over which there may be difference of opinions by different minds.7 Undertakings may be considered by the Commission if it holds a concern that the agreement does not meet the requirements set out in ss.186 and 187. A concern held by a Member may empower the consideration of an undertaking, if the undertaking meets the concern and, after consulting with any known bargaining representatives, the Member may approve the agreement with the undertaking upon being satisfied that the undertaking does not cause financial detriment to any employee covered by the agreement nor result in substantial changes to the agreement.8

[7] In this regard the wages payable under the Agreement bear some consideration in this decision. The table shown at Attachment 2 shows the classifications within the Agreement matched to their modern award counterpart as put forward by the Applicant in its statutory declaration in support of the application (the Form F17). The matching was not the subject of an objection from the QNMU. Also, within Attachment 2 is a comparison between the modern award rate at test time, being the date upon which the application was made (s.193(6)) and the wage rate for the corresponding classification. That table shows cogently that the Agreement wage rates are superior to all modern award wage rates, with one exception, being that identified in the “concerns” correspondence to the Applicant referred to above and which Regis seek to address by removing the wages for Registered Nurse Level 4 and 5. With the exception of these two wage rates, every employee covered by the Agreement is between 2.77% and 33.38% better off when examining the unloaded ordinary hourly wage rate.

Reduction of hours and wages of part-time employees

[8] The objection made by QNMU dealing with the hours and wages of part-time employees relates to the combination of the Agreement’s clauses 10.3, 10.4, 12.1 and 12.2. Those clauses provide the following:

“… 10.3 Part Time Employee

10.3.1 A part time Employee is an Employee engaged to work less ordinary hours than those defined at clause 10.2.1 above for a full time Employee and whose hours of work are reasonably predictable. The minimum ordinary hours for part time Employees is 16 hours per fortnight.

10.3.2 The terms of this Agreement will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time Employees are 38 hours per week.

10.3.3 Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.

10.3.4 A part-time Employee must be paid for a minimum of 3 hours on any day where work is performed.

10.3.5 A part-time Employee may request to work ordinary hours in addition to those agreed in clause 10.3.1 up to a maximum of 38 hours per week. Any request to work additional ordinary hours wil.1 be subject to the following:

(a) The Employer shall take into account occupational health and safety considerations, the rest and recreational needs of Employees and the operational requirements of the facility in the approval of such a request.

(b) Clause 15 (Overtime) will not apply to additional ordinary hours worked under this sub-clause which are less than the ordinary daily or weekly rostered hours of full-time Employees as set out in this Agreement.

10.3.6 Biannual review of part time hours

(a) Where an Employee is regularly working more than their guaranteed minimum number of hours over at least a continuous 26 week period, the Employee may apply to have their hours reviewed. This application may be made twice annually.

(b) The hours worked in the following circumstances will not be incorporated in any adjustment:

(i) If the increase in hours is as a direct result of an employee being absent on leave, such as for example, annual leave, long service leave, maternity leave, extended leave without pay, workers compensation; and

(ii) If the increase in hours is due to a temporary increase in hours only due, for example, to the temporary needs of a resident or client.

(c) If a review establishes a consistent pattern of greater hours being worked, the Employee can apply in writing to the Employer for those additional hours to become part of their guaranteed minimum number of hours. Any request will not be unreasonably refused by the Employer.

10.4 Where operational and service delivery needs alter at the Employer's facilities the Employer is able to reduce the working hours of part-time Employees in accordance with clauses 7, 12.1 and 12.2 of this Agreement.

…”

“12 ROSTERS

12.1 Rostering is subject to the operational and service delivery needs of each of the Employer's facilities. In the event of changed operational and service delivery needs the Employer will provide the Employee with notice of 3 weeks, as set out in clause 12.2 and consult in accordance with clause 7.

12.2 The Employer must provide 3 weeks' notice to all part time Employees of any reduction in working hours.

…”

[9] The QNMU says about these provisions:

“11. Subclause 10.4 also provided for Regis to unilaterally reduce the hours (and thereby the fortnightly wages) of part-time employees, but Regis have given a s.190 undertaking (no.4) “…that it will not apply or seek to enforce that clause 10.4…”. S.190 undertakings are only given to alter terms of an agreement where the agreement would not meet the requirements of ss.186 (which includes the BOOT) and 187 of the FW Act. Regis gave Undertaking 4. because subclause 10.4 would have caused the Agreement to fail the BOOT. Subclauses 12.1 and 12.2 also allow Regis to unilaterally reduce the hours (and thereby the fortnightly wages) of part-time employees.

12. The Award however, provides in subclause 10.3:

“(b) Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.

(c) The terms of the agreement may be varied by agreement and recorded in writing.”

13. These Award provisions protect part-time employees against an employer unilaterally reducing the number of hours worked (and paid for) by a part-time employee.

14. Subclause 10.3 of the Award also provides in paragraph (a) “A part-time employee is an employee … whose hours of work are reasonably predictable.” A part-time Regis employee whose hours of work and wages can be reduced at any time by the employer without the employee’s agreement, does not have the very important protection of reasonably predictable hours of work, nor therefore of reasonably predictable wages on payday, that is provided by the Award.” 9

[10] In response to this concern, Regis made submissions to the Commission to the effect that it did not agree with the QNMU’s characterisation of clause 10.4 of the Agreement that it allows the employer to unilaterally reduce part time employees working hours however, provided an undertaking which remains in the most recent undertaking provided on 21 August 2019 to alleviate any such concern as follows: 10

“Regis undertakes that it will not apply or seek to enforce clause 10.4 of the Agreement”

[11] It is evident from the foregoing that the QNMU’s concern is to the effect that a part-time employee may have their hours reduced at any time without their prior agreement, meaning that they do not then have the protection of reasonably predictable hours of work. While it is evident from the drafting of the Agreement that there can in fact be changes, potentially unilateral, to a part-time employee’s hours of work, the protection afforded by clause 12 that three weeks’ notice must be provided to all part-time employees of any reduction in the working hours operates to temper the potential for the right of reduction to be unreasonably operated. There is still the obligation that part-time hours be reasonably predictable and that they be a minimum of 16 hours per fortnight and 3 hours per shift. Moreover, given the undertaking proffered by Regis it is unclear how part time employees hours could be reduced in the way envisioned by QNMU.

[12] It is also be noted that the relevant provisions of clause 10 and 12 objected to by the QNMU are in substantially the same terms as the corresponding clauses in the currently operating enterprise Agreement, the Regis Aged Care Registered Nurses, Enrolled Nurses and Assistants in Nursing, Queensland Agreement 2015 (the 2015 Agreement). 11 The relevance of the provisions of the 2015 Agreement is that, were there actually to be a practice on the part of Regis for regular and detrimental unilateral changes to part-time employee hours of work, it could reasonably be expected that evidence on the subject would be brought forward by the QNMU or in another aggrieved party. No such evidence is before the Commission.

[13] To the extent that any detriment could come from the combination of the part-time employee provisions in clauses 10 and 12 of the 2018 Agreement, then because of the protections built into the clauses and referred to above by Regis, it may be inferred that such detriment is likely minor, infrequent and wholly acquitted within the significantly higher wage rates provided for within the Agreement and the undertakings now provided.

Broken shifts

[14] It is argued by the QNMU that the effect of clause 11.6 is such as to create a detriment for employees of such significance that the Commission cannot be satisfied employees are better off overall with the approval of the Agreement. That clause, together with Undertaking 7 given by Regis on the subject, is in the following terms:

•  Clause 11.6

“11.6 Broken Shifts

11.6.1 A broken shift means a shift worked by an Employee that includes breaks (other than a meal break) as set out in this clause 11.6.1, totalling not more than four hours and where the span of hours is not more than 12 hours.

11.6.2 Broken duty shifts must only be worked where there is mutual agreement between the Employer and the Employee.

11.6.3 The maximum spread of hours for a broken shift is 12 hours. All work performed beyond the maximum span of 12 hours for a broken shift will be paid at double time.

11.6.4 An Employee must receive a minimum break of 10 hours between the broken shifts and the next ordinary rostered shift.”

•  Undertaking 7

“7. With respect to clause 11.6 (Broken Shifts), Regis undertakes that employees will not be rostered to work more than one broken shift within a fortnightly roster period.”

[15] In considering the provisions of the Agreement together with the QNMU’s objections, it is to be noted that the Nurses Award 2010, the reference Modern Award, does not provide for broken shifts to be required to be performed by employees. The 2015 Agreement makes provision for broken shifts, with the current term as follows:

“12.6 Broken Shifts

Broken duty shifts shall only be worked where there is mutual agreement between the Employer and the Employee with a maximum spread of 12 hours, but total hours worked shall not to be more than 8 hours over 2 duty periods.”

[16] The QNMU’s objections on the subject include that:

•  even though Undertaking 7 limits the number broken shifts to one per fortnight or 26 per year, such does not limit the number of portions into which an employee shifts can be broken; 12

•  while clause 11.6.2 requires that the mutual agreement between the employer and employee on the subject of broken shifts the agreement does not prevent working broken shifts being a condition of employment. 13

[17] Regis submissions on the subject of broken shifts includes the following, stated when it first responded to the Commission’s concerns, initially declining to provide an undertaking dealing with broken shifts:

“1. Broken shifts are a long-standing arrangement in Regis’ aged care operations, and Regis’ enterprise agreements in all States and Territories contain broken shift provisions (including the existing Queensland agreement, the Regis Aged Care Registered Nurses, Enrolled Nurses and Assistants in Nursing, Queensland Agreement 2015).

2. In practice broken shifts are rarely worked by employees but where such arrangements do apply, it is often to allow employees to pick up extra work/shifts that have become available due to other employees being absent at short notice (eg due to sick leave). The provisions of clause 11.6 in the proposed Agreement seek to ensure that employees are afforded this opportunity whilst also ensuring that such arrangements are only voluntary, and that employees are duly compensated for it. For example, as per clause 11.6:

a. employees shall only work broken shifts where there is mutual agreement (clause 11.6.2);

b. after working a broken shift, an employee must be rostered off for a minimum of 10 hours before working their next shift (clause 11.6.4). This is a variation on the usual position for time off between shifts, which under clause 11.2.1 is 10 hours but which can be reduced by agreement to 8 hours; and

c. broken shifts must not extend past 12 hours and if they do, all hours worked thereafter are paid at double time (clause 11.6.3). This ‘overtime’ payment is more beneficial than would otherwise apply under clause 15 (that is, time and a half for the first two hours).

3. In the above circumstances, and while broken shifts are not expressly provided for in the Nurses Award 2010, Regis respectfully submits that employees would not be disadvantaged under the proposed Agreement by working broken shifts. Regis also considers that, having regard to the other more beneficial entitlements listed at question 3.3 of the Form F17 submitted on 19 December 2018, employees are still better off overall under the proposed Agreement notwithstanding the fact that the Nurses Award does not provide for working broken shifts.” 14

[18] The foregoing statements were not confirmed in evidence from any person.

[19] It is noted that the QNMU did not bring forward any evidence on the subject of the employer’s practice about broken shifts but speculated about the detriment the clause may create. This was both in respect of the possibility that Regis may require broken shifts to be worked as a condition of employment, as well as providing a lengthy hypothetical situation aimed at establishing that broken shifts could be worked in an ultimately detrimental manner.

[20] I am not persuaded by the QNMU’s submissions that the second tranche of a broken shift should be characterised by the recall provisions under the Award and therefore susceptible to overtime rates, but recognise that the matter is the subject of some controversy in situations where the modern award does not provide for broken or split shifts but an agreement does.

[21] Why the modern award does not provide for broken shifts is unknown, and rather surprising really, since it is a common enough arrangement in the aged care sector.

[22] Employees undertaking broken shifts under the Agreement are firstly not “required” to be on call as provided by clause 28.5(a) of the Award. Additionally, such employees are not recalled to work as a requirement as provided by clauses 28.5 and 28.6 of the Award when undertaking the second tranche of their shift. This is a prearranged shift whereby an employee has agreed to work a shift which is broken by an agreed designated unpaid break of not more than four hours. There is no element of surprise on the part of the employee nor a mandatory direction by the employer to attend the shift as contemplated by clauses 28.5 or 28.6 of the Award.

[23] Pertinent to this analysis is a finding by the Federal Court in relation to a modern award provision under the Airline Operations – Ground Staff Award 2010 that provides “Except at the regular change-over of shifts, an employee must not be required to work more than one shift in each 24 hours” which the Court construed as providing that an employer cannot require an employee to be required to work split-shifts under the Award. While making that finding, the Court did not decide that a split shift could not be voluntarily worked and did not consider the issues of overtime rates and recall penalties for the second period of work in a split-shift. 15

[24] As such, an analysis is required of the effect of the Agreement’s broken shift arrangements on employees who may be called upon to work broken shifts under the Agreement.

[25] The QNMU, as noted earlier, submits that the potential arrangement of broken shifts could be highly detrimental to an employee, but provided no evidence on the subject. In relation to the QNMU’s submissions, it is to be noted that a broken shift arrangement presently operates at Regis, and so the fact that there is no evidence brought forward by the QNMU about how the arrangements actually operate inexorably leads to the conclusion that such operation in all reality does not meet the hypothetical. There must be some regard had to the democratic process in situations such as this; not every theoretical detriment actually is a detriment. The fact that 80% of those who voted for the Agreement, did so in the knowledge both that the 2015 Agreement and the proposed new agreement provided for broken shifts, must stand for something. If the employer is really as sharp and sly on the matter of broken shifts as the QNMU implies, and the detriment is real and palpable, that surely would be reflected in the ballot box.

[26] If my previous analysis of the application of overtime is incorrect, and overtime is payable upon a return to work when a shift is broken, then basic modelling would suggest that the combination of the applicable wage rates and the undertaking 7 limiting broken shifts to one per fortnight leaves the majority of employees better off, but not all. It is noted that for the purposes of modelling neither party led evidence of indicative rosters. Relying on the information contained in the Applicant’s Form F17 statutory declaration which indicated that approximately 96% of eligible voters were part time, modelling was undertaken on the basis of an employee undertaking part time hours. A mid-range Registered Nurse, Level 1.2 earning $26.56 per ordinary hour under the modern award and $28.75 under the Agreement (8.25% above the Award) would be paid the following if it was assumed the person worked 6 shifts in a fortnight, each of 6 hours duration, but with one of those shifts being split into two portions of two hours in the first tranche of the shift and four hours in the second tranche of the shift:

Agreement Ordinary Rate	$28.75	Award Ordinary Rate	$26.56
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary Hours	32	100%	$920.00	Ordinary Hours	32	100%	$849.92
Second tranche of split shift - first 2 hours	2	100%	$57.50	Second tranche of split shift - first 2 hours	2	150%	$79.68
Second tranche of split shift - thereafter	2	100%	$57.50	Second tranche of split shift - thereafter	2	200%	$106.24
Saturday	150%	$0.00	Saturday	150%	$0.00
Sunday	175%	$0.00	Sunday	175.0%	$0.00
Annual Leave	Yes	$84.04	Annual Leave	Yes	$77.64
Leave Loading	Yes	$14.71	Leave Loading	Yes	$13.59
Totals	36.00	Hrs	$1,133.75	Totals	36.00	Hrs	$1,127.06
Agreement Total Weekly Rate			$1,133.75	Model Summary
Award Total Weekly Rate			$1,127.06
Dollar / Actual Percentage Difference			$6.68	The Dollar / Actual Percentage Difference identifies the modelled difference between the agreement and the award in dollar terms and as a percentage.
			0.59%
Agreement Percentage Increase Required			-0.59%	The Agreement Percentage Increase Required is the amount the agreement rate would need to be increased by to satisfy the BOOT under this modelling.

[27] It is conceivable under this model that certain employees may not be better off under the above scenario, and in particular those employees who would receive wage rates within a margin of 8% above the Award. Such employees include:

Modern Award Classification	Agreement Classification		Modern Award Rate	Agreement Rate	Percentage Difference
All Nursing staff excluding ex-MCQ and ex-BlueCare employees
Assistants in Nursing
1st year	Level 1.1		$20.65	$21.62	4.70%
3rd year	Level 1.2		$21.35	$22.00	3.04%
4th year	Level 2.1		$22.04	$22.65	2.77%
4th year	Level 2.2		$22.04	$22.83	3.58%
4th year	Level 3		$22.04	$23.59	7.03%
Ex-MCQ Employees
Assistants in Nursing
4th year		Level 2 PP1	$22.04	$23.48	6.53%

[28] Modelling suggests that an Assistants in Nursing Level 3, 4^th year who would otherwise receive $22.04 per hour under the Award and who is entitled to $23.59 under the Agreement (7.03% above the Award) may be worse off by -$5.00 per fortnight under this scenario.

Agreement Ordinary Rate	$23.59	Award Ordinary Rate	$22.04
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary Hours	32	100%	$754.88	Ordinary Hours	32	100%	$705.28
Second tranche of split shift - first 2 hours	2	100%	$47.18	Second tranche of split shift - first 2 hours	2	150%	$66.12
Second tranche of split shift - thereafter	2	100%	$47.18	Second tranche of split shift - thereafter	2	200%	$88.16
Saturday	150%	$0.00	Saturday	150%	$0.00
Sunday	175%	$0.00	Sunday	175.0%	$0.00
Annual Leave	Yes	$68.96	Annual Leave	Yes	$64.42
Leave Loading	Yes	$12.07	Leave Loading	Yes	$11.27
Totals	36.00	Hrs	$930.26	Totals	36.00	Hrs	$935.26
Agreement Total Weekly Rate			$930.26	Model Summary
Award Total Weekly Rate			$935.26
Dollar / Actual Percentage Difference			-$5.00	The Dollar / Actual Percentage Difference identifies the modelled difference between the agreement and the award in dollar terms and as a percentage.
			0.53%
Agreement Percentage Increase Required			0.54%	The Agreement Percentage Increase Required is the amount the agreement rate would need to be increased by to satisfy the BOOT under this modelling.

[29] As discussed above, while I am not satisfied that these employees should necessarily be entitled to overtime for the second tranche of a split shift, I do recognise that a split shift is likely a reduction both financially and non-financially for an employee, given there is a period of time in which they are not working during a shift and therefore not paid, as well as the disutility in an employee potentially travelling to and from work during the break in shift. On the other hand, I note that a split shift is not necessarily entirely a disadvantage to an employee who may receive additional work which they may not otherwise have been rostered.

[30] In an endeavour to balance these factors, I note that the additional protection stated within Undertaking 7 ensures employees will not be rostered to work more than one broken shift within a fortnightly roster period is a sufficient one in the context of the overall Agreement for the majority of employees whose wage rates are more than 8% above those in the Award. I also note for the same purpose the Agreement’s rostering and hours of work requirements. I am however, not satisfied that employees whose wage rates are within a margin of 8% above the Award will be better off under the current undertaking and Agreement provisions.

[31] As such, the Commission is prepared to accept Undertaking 7 for those employees whose wage rate more than 8% above the Award and does not require further commitments to be given by Regis on the subject for those employees. However, for employees whose wage rates are within a margin of 8% above the Award I am not satisfied that the current undertakings are sufficient in order to satisfy me that they can undertake split shifts once per fortnight without some financial incentive. Should Regis press for these employees to be able to undertake split shifts under the Agreement, and it may be that it does not, then an additional or amended undertaking is required. There appear to be at least three alternatives for Regis to consider:

•  Provide an undertaking excluding the detrimentally affected employees from the use of broken shifts;

•  Through an undertaking provide an allowance or wage rate adjustment to the employees concerned, so as to demonstrate they are better off overall; or

•  Provide an alternative undertaking of some kind which demonstrates the employees are better off overall

[32] Regis is given seven days from the date of this decision to provide such further or alternative undertaking it wishes (on this subject only). At such time as Regis provides a further or alternative undertaking, it is also to file in the Commission material that would enable the Commission to be satisfied the views of each bargaining representative on the subject of the undertaking have been sought and, if any, are known to the Commission. The QNMU and any other bargaining representative is directed to cooperate with and facilitate Regis’ compliance with the foregoing direction. If Regis does not comply with this direction within the indicated timeframe, the application for approval of the Agreement will be dismissed for reason of the Commission not being satisfied the Agreement passes the better off overall test.

Work performed during meal breaks

[33] The QNMU’s objection in this regard is that there is insufficient protection given to employees because of the fact that the undertaking would see an employee required to remain on the premises and to be available during the meal break while being paid at ordinary time rates whereas the modern award would require a payment overtime rates under such circumstances. The respective clauses are as follows:

•  Agreement clause 13.1

“13 MEAL BREAKS AND REST PAUSES

13.1 Meal Breaks

(a) Where an Employee is rostered to work at least 5 hours, the Employee will be entitled to an unpaid meal break of at least 30 minutes and not more than 60 minutes.

(b) The meal break shall occur between the third and fifth hour of work unless an alternate time has been mutually agreed in writing between the Employer and Employee.

(c) Where an Employee is required to remain on premises or be available during their meal break, the meal break shall be paid at ordinary time and be counted as time worked.

(d) Any paid meal breaks must be authorised by the Facility Manager or their equivalent.

(e) Where an Employee is required to work during a meal break and continuously thereafter they shall be paid at the rate of double their ordinary time rate of pay until released from duty for a meal break.”

•  Undertaking 8

“8. Regis undertakes with respect to clause 13.1(c) that the clause will be implemented as if it provides for the following:

“Where an employee is required to remain on premises or be available during their meal break (but is not recalled or required to work during the meal break), the employee will be paid for the meal break at their ordinary time rate and the meal break shall be counted as time worked””

•  Nurses Award 2010, clause 27.1(b)

“27. Breaks

27.1 Meal breaks

(a) An employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes. Such meal break will be taken between the fourth and the sixth hour after beginning work, where reasonably practicable. Provided that, by agreement of an individual employee, an employee who works shifts of six hours or less may forfeit the meal break.

(b) Where an employee is required to be on duty during a meal break, the employee will be paid overtime for all time worked until the meal break is taken.

(c) Where an employee is required by the employer to remain available during a meal break, but is free from duty, the employee will be paid at ordinary rates for a 30 minute meal break. This period will not count as time worked when calculating ordinary hours for the purposes of overtime or penalties. If the employee is recalled to perform duty during this period the employee will be paid overtime for all time worked until the balance of the meal break is taken.”

[34] The QNMU further argues that the way the Agreement and undertakings are drafted there would be no limit on the number of meal breaks during which an employee might be required remain available or on premises and it could well be that the employee never has a meal break because of the requirement to remain available or on premises. While that may be the case, and probably a somewhat hypothetical one, such could well be the outcome from the strict application of the modern award. The drafting of the modern award does not prohibit an employee from being required to be on duty during meal break or prohibiting employer from rostering in such a manner, it merely endeavours to establish a penalty regime if that is the circumstance within the workplace.

[35] As a result, the consideration is about the impact of the payment regime for the purposes of the BOOT assessment.

[36] Again, I note that there is no evidence before the Commission about such circumstances. There is plainly a detriment of some kind from the Agreement provision in comparison with the Award provisions, which is answered to some degree by the undertaking given by Regis, but not so far as to equate with the benefits that would flow from the Award provision. In consideration of the question of whether employees are better off as a result of this provision the wages regime must also be taken into account, which I do. The wages differentials highlighted in Attachment 2 are sufficient to answer such a problem as there may be. The undertaking given by Regis is consistent with the currently applicable provision (see cl.14.1(c)). While such begs the question of why it was not incorporated into the latest Agreement in the first place, the undertaking is acceptable and provides a sensible balance to the competing interests of it and the employees to be covered by the Agreement.

[37] While the QNMU put forward numerous suggested changes to the undertakings proposed by Regis, I do not consider they are required, and accept that the undertakings proposed by Regis sufficiently address the concerns held by me.

[38] Finally, as referred to earlier, the QNMU object to Regis’ proposal, in order to deal with the Commission’s concerns that one Registered Nurse Level 5 wage rate is lower than that appearing in the Modern Award, to substitute a new wages schedule for that appearing in the Agreement made and then lodged in the Commission. The new wages schedule omits wage rates for Registered Nurses Level 4 and 5, with it being argued that wage rates for the levels were included in error and it being the case that “employees who fall under Levels 4 and 5 of the Nurses Award 2010 are Facility Managers and Clinical Managers: these are senior managerial employees and accordingly, they are expressly excluded from coverage of the proposed Agreement under clause 6.2”. 16 Regis have sought that the Commission correct the indicated error pursuant to s.586 of the Act.

[39] I am prepared to make this correction after noting that clause 6.2 expressly provides that the Agreement “does not apply to or cover Facility Managers, Clinical Managers or State Managers or any other state office employee employed by the Employer in Queensland” and that no role descriptions for Registered Nurse Levels 4 and 5 are provided for within the Agreement (see Appendix 2 - Generic Level Statements). I also note that the Notice of Employee Representational Rights proposed bargaining for an agreement “to cover employees that are employed at Regis Aged Care facilities in Queensland, and who fall within the classifications contained in the Agreement”.

[40] In making this correction, I note that the same error is present in the 2015 Agreement. As the ultimate drafter of the enterprise agreements it is incumbent on Regis to have taken greater care in preparation of the document submitted to employees for the ballot after bargaining ended; it is not for the Commission to act as some sort of final drafting filter. The Commission’s role should be to either approve an agreement or not, after being satisfied of the statutory criteria.

[41] After consideration of all matters before the Commission, I find that the Agreement passes the better off overall test except as discussed above regarding split shifts and employees receiving wage rates less than 8% above the Award.

DIRECTION

[42] Accordingly, Regis is given seven days from the date of this decision to provide such further or alternative undertakings as it wishes (on the subject of broken shifts only). At such time as Regis provides a further or alternative undertaking, it is also to file in the Commission material that would enable the Commission to be satisfied the views of each bargaining representative on the subject of the undertaking have been sought and, if any, are known to the Commission. The QNMU and any other bargaining representative is directed to cooperate with and facilitate Regis’ compliance with the foregoing direction. The Commission will then determine the application on the papers based upon such additional material. If Regis does not comply with this direction within the indicated timeframe, the application for approval of the Agreement will be dismissed for reason of the Commission not being satisfied the Agreement passes the better off overall test.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR712587>

Attachment 1

Attachment 2

Modern Award Classification	Agreement Classification	Modern Award Rate	Agreement Rate	Percentage Difference
All Nursing staff excluding ex-MCQ and ex-BlueCare employees
Assistants in Nursing
1st year	Level 1.1	$20.65	$21.62	4.70%
3rd year	Level 1.2	$21.35	$22.00	3.04%
4th year	Level 2.1	$22.04	$22.65	2.77%
4th year	Level 2.2	$22.04	$22.83	3.58%
4th year	Level 3	$22.04	$23.59	7.03%
Enrolled Nurses
PP1	Level 1.1	$22.44	$25.18	12.21%
PP1	Level 1.2	$22.44	$25.58	13.99%
PP3	Level 2.1	$23.04	$26.36	14.41%
PP4	Level 2.2	$23.38	$26.76	14.46%
Advanced Practice Enrolled Nurse Level 3
PP5	Level 3.1	$23.61	$26.51	12.28%
PP5	Level 3.2	$23.61	$26.91	13.98%
Registered Nurse
Level 1 PP5	Level 1.2	$26.56	$28.75	8.25%
Level 1 PP6	Level 1.3	$27.33	$30.66	12.18%
Level 1 PP7	Level 1.4	$28.12	$32.42	15.29%
Level 1 PP8	Level 1.5	$28.85	$34.00	17.85%
Level 2 PP1	Level 2.1	$29.62	$34.00	14.79%
Level 2 PP3	Level 2.2	$30.61	$35.28	15.26%
Level 2 PP4	Level 2.3	$31.11	$37.15	19.41%
Level 3 PP1	Level 3.1	$32.12	$37.20	15.82%
Level 3 PP3	Level 3.2	$33.27	$38.62	16.08%
Level 3 PP4	Level 3.3	$33.87	$40.10	18.39%
Level 4 Grade 1	Level 4.1	$36.66	$42.45	15.79%
Level 4 Grade 2	Level 4.2	$39.28	$45.22	15.12%
Level 4 Grade 3	Level 4.3	$41.57	$48.01	15.49%
Level 5 Grade 1	Level 5.1	$36.99	$42.45	14.76%
Level 5 Grade 2	Level 5.2	$38.95	$44.83	15.10%
Level 5 Grade 3	Level 5.3	$41.57	$48.01	15.49%
Level 5 Grade 6	Level 5.4	$53.29	$51.20	-3.92%
Ex-MCQ Employees
Assistants in Nursing
1st year	Level 1 PP1	$20.65	$22.55	9.20%
3rd year	Level 1 PP2	$21.35	$22.97	7.59%
4th year	Level 2 PP1	$22.04	$23.48	6.53%
4th year	Level 2 PP2	$22.04	$23.90	8.44%
4th year	Level 3 PP1	$22.04	$24.75	12.30%
Enrolled Nurses
PP1	Level 1 PP1	$22.44	$26.78	19.34%
PP1	Level 1 PP2	$22.44	$27.21	21.26%
PP3	Level 2 PP1	$23.04	$28.17	22.27%
PP4	Level 2 PP2	$23.38	$28.46	21.73%
PP5	Level 3 PP1	$23.61	$28.75	21.77%
Registered Nurse
Level 1 PP6	Level 1 PP1	$27.33	$30.87	12.95%
Level 1 PP7	Level 1 PP2	$28.12	$33.01	17.39%
Level 1 PP8	Level 1 PP3	$28.85	$34.97	21.21%
Level 2 PP1	Level 2 PP1	$29.62	$36.72	23.97%
Level 2 PP4	Level 2 PP2	$31.11	$38.15	22.63%
Level 3 PP4	Level 3 PP1	$33.87	$40.28	18.93%
Ex-BlueCare Employees
Assistants in Nursing
1st year	Level 1 PP1	$20.65	$24.81	20.15%
3rd year	Level 1 PP2	$21.35	$25.33	18.64%
4th year	Level 2 PP1	$22.04	$25.97	17.83%
4th year	Level 2 PP2	$22.04	$26.50	20.24%
4th year	Level 3 PP1	$22.04	$27.58	25.14%
Enrolled Nurses
PP1	Level 1 PP1	$22.44	$28.55	27.23%
PP1	Level 1 PP2	$22.44	$29.07	29.55%
PP3	Level 2 PP1	$23.04	$30.14	30.82%
PP4	Level 2 PP2	$23.38	$30.69	31.27%
PP4	Level 2 PP3	$23.38	$31.11	33.06%
PP5	Level 3 PP1	$23.61	$31.49	33.38%

 1   Form F17, Employer’s Statutory Declaration, 18 December 2018, Items 2.3; 2.4 & 2.9.

 2   Ibid, Item 2.5 & 2.6.

 3   Ibid, Item 2.7.

 4   Ibid, Items 2.9 & 2.10.

 5   Regis Form F1, 16 August 2019, pp.3 – 4.

 6   Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd[2017] FWCFB 1664, (2017) 268 IR 265, [11] – [12].

 7   ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association, (2017) 262 CLR 593, (2017) 270 IR 459, [99].

 8   Beechworth[2017] FWCFB 1664, (2017) 268 IR 265, [23],

 9   ANMF – QNMU Submissions, 4 September 2019.

 10   Regis Submissions, 2 May 2019, 2.3.

 11   AE416787.

 12   ANMF – QNMU Submissions, 4 September 2019, [18].

 13   Ibid, [19].

 14   Correspondence from Regis, 1 April 2019.

 15   Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37, (2019) 284 IR 97, [35], [137].

 16   Regis Form F1, 16 August 2019, pp.3 – 4.