Roseneath Aged Care Centre v NSW Nurses & Midwives' Association

[2013] FWC 4969

[2013] FWC 4969 Note: An appeal pursuant to s.604 (C2013/5553) was lodged against this decision - refer to Full Bench decision dated 25 September 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Roseneath Aged Care Centre
v
NSW Nurses & Midwives’ Association; Australian Nursing Federation-New South Wales Branch; Health Services Union
(AG2013/6933)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JULY 2013

Application for approval of the Roseneath Aged Care Centre, NSWNMA & HSU NSW Branch Enterprise Agreement 2012.

[1] Roseneath Aged Care Centre (the Applicant) made an application pursuant to s.185 of the Fair Work Act 2009 (FW Act) for approval of the Roseneath Aged Care Centre NSWNMA & HSU NSW Branch Enterprise Agreement 2012 (the Agreement).

[2] On 26 June 2013, I wrote to the bargaining representative for the Applicant. In that email I advised that the Agreement did not provide for part-time aged care and health professional employees to be paid overtime if directed to work outside of their agreed hours and that may mean that the Agreement did not pass the better off overall test. The Agreement also had a definition of immediate family which was not consistent with the definition in the FW Act but that matter was resolved as the Applicant provided an undertaking to remedy that inconsistency.

[3] In approving an agreement the Fair Work Commission must be satisfied that the Agreement passes the better off overall test (the test). 1

[4] Subsections 193(1) and (7) of the FW Act relevantly set out the criteria to be followed in determining if an agreement passes the test.

193 Passing the better off overall test

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

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

FWC may assume employee better off overall in certain circumstances

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

[5] It is clear from s.194(7) of the FW Act that it is permissible to examine whether a class of employees would be better off and if that class of employees is not better off, then the Agreement fails the test.

[6] In this case the class of employees are part-time employees whose work, but for the approval of the Agreement, would be regulated by the Aged Care Award 2010 (AC Award) and the Health Professionals and Support Services Award 2010 (HPSS Award) (the Awards).

[7] The Agreement provides for part-time employment as follows:

“11.3 Part-time Employment

(a) A part-time employee is an employee who is engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work.

(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) A part-time employee will be paid a minimum of three hours pay for each engagement except as follows:

(i) All part-time employees will be paid a minimum of two hours pay for each engagement on a Public Holiday.

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

(e) Unless otherwise stated, 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.

(f) A part-time employee may be requested to work reasonable additional hours in accordance with Clauses 23 Ordinary Hours of Work, 29 Rosters and 34 Overtime in this Agreement.

11.4 Annual Review of Part-time Hours

(a) At the request of an employee, the hours worked by the employee will be reviewed annually.

(b) Where the employee is regularly working more than their specified contracted hours then such contracted hours shall be adjusted by the employer, to reflect the hours regularly worked, which may include moving to full time employment.

(c) The hours worked in the following circumstances will not be incorporated in the 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, workers compensation; and

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

(d) Any adjusted contracted hours resulting from a review, should, however, be such as to readily reflect roster cycles and shift configurations utilised at the workplace.”

[8] Clause 32 of the Agreement provides for payment for working overtime for part-time employees as follows:

“32.2 Part-time Employees

(a) All time worked by part-time employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(b) All time worked by part-time employees which exceeds 10 hours per day or shift, will be paid at the rate of time and a half for the first two hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half.”

[9] These provisions are to be contrasted with the provisions in the AC Award and the HPSS Award.

[10] The AC Award provides at subclause 10.3 as follows:

“10.3 Part-time employees

(a) A part-time employee is an employee who is engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work.

(b) Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day.

(c) Any agreed variation to the hours of work will be in writing.

(d) The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.

(e) Payment in respect of personal/carer’s leave (where an employee has accumulated an entitlement) for a part-time employee will be on a pro rata basis made according to the number of ordinary hours the employee would have worked on the day or days on which the leave was taken.

[11] The HPSS Award has the same provision at subclause 10.3.

[12] Further subclause 25.1(b) of the AC Award provides as follows:

(b) Part-time and casual employees

(i) All time worked by a part-time or casual employee in excess of 38 hours per week or 76 per fortnight will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Saturdays and Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(ii) Subject to the provisions of clause 25.1(b)(iii) below, all time worked by a part-time or casual employee which exceeds 10 hours per day, will be paid at the rate of time and a half for the first two hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half.

(iii) For a part-time employee, all time worked in excess of their rostered hours on any one day (unless an agreement has been entered into under clause 10.3(c)), will be overtime and paid at the rates prescribed by clause 25.1(b)(i).

[13] Subclause 28.1(d) of the HPSS Award provides as follows:

(d) Part-time employees

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

[14] The Agreement provides, in contrast to the Awards, that part-time aged care and health professional employees can be directed to work outside of their agreed hours at ordinary time until they have either worked 10 hours in a day or 38 hours in a week or 76 hours in a fortnight.

[15] The Applicant submitted that the Agreement at clause 11.3(b), sets out that, before commencing employment, a part-time employee and his/her employer will agree in writing to a guaranteed number of hours and the roster arrangements which will apply to those hours.

[16] Further it was submitted that clause 11.3(f) of the Agreement then specifies that a part-time employee may be “requested” to work reasonable additional hours in accordance with clauses 23 - Ordinary Hours of Work, 29 - Rosters and 34 - Overtime.

[17] However, it was submitted that while an employer may request a part-time employee to work additional hours in accordance with the above clauses outlined, clause 11.3(d) stipulates that any variation to an employee’s guaranteed number of hours and the rostering arrangement that applies to those hours is to be varied by agreement and recorded in writing.

[18] No submissions were made that employees cannot be directed to work overtime. If that had been the submission of the Applicant then I would have accepted an undertaking to make that clear.

[19] The Applicant submitted that:

(a) these terms are consistent with the relevant award;

(b) the making of the agreement makes the terms of the agreement consistent with the relevant terms of the awards; and

(c) the agreement when considered as a whole passes the better off overall test.

[20] It is clear that the terms of the Agreement are not consistent with the Awards which both provide that an employee directed to work outside his or her agreed hours is paid overtime at overtime rates.

[21] If the second submission of the Applicant is intended to suggest that the very making of an enterprise agreement means that a provision, which could result in a part-time employee being directed to work outside of his or her agreed hours without the payment of overtime, is not less beneficial then I do not accept this submission.

[22] I also do not accept the submission that an enterprise agreement can be substituted for the individual employee’s agreement to vary his or her hours of work.

[23] The provisions in the Awards in relation to part-time employees are protective.

[24] When making the Awards, the Full Bench of the Australian Industrial Relations Commission 2 understood that it was the practice in many health facilities that part-time employees agreed to work additional hours at ordinary time. Whilst the Full Bench expressed some reservations about this practice, the Minister’s consolidated request3 made it clear that modern awards should not operate to discourage employees from offering additional hours to part-time employees. However there is a significant difference between an employee agreeing to work additional hours and being directed to work additional hours.

[25] Without a similar provision in the Agreement, part-time employees lose a significant benefit. The Agreement would allow a part-time employee to be directed to remain at work after his or her rostered finishing time or directed to attend work on a day she or he is not normally rostered to work and be paid at ordinary time until the hours worked exceed 10 hours per day or shift or 38 hours per week or 76 hours per fortnight.

[26] Such a provision is clearly less beneficial.

[27] I do accept that this less beneficial provision in the Agreement is only one of the factors to be considered in determining whether the Agreement meets the test.

[28] On my calculations a part-time aged care employee who was directed to work more than three hours a week would be worse off financially under the Agreement compared to the AC Award.

[29] The countervailing benefits for a part-time employee include a guaranteed minimum hours of work of three hours, higher severance payments, higher wages, service allowance payable for employees who have had more than 10 years service and long service leave benefits.

[30] However, I am not satisfied that these benefits and other non-monetary benefits provided in the Agreement compensate part-time employees who are required to work outside of their ordinary hours at single time until they have worked 10 hours a day, 38 hours in a week or 76 hours in a fortnight.

[31] The ability of the employer to be able to direct an employee to work additional hours at a single time makes the requirement that employees agree to work additional hours otiose.

[32] Accordingly, I find that in relation to part-time employees, the Agreement does not to pass the test.

[33] I therefore am not satisfied that the Agreement passes the overall test. I had provided the Applicant with an earlier opportunity to provide an undertaking in relation to part-time employees and the Applicant advised that it did not consider such an undertaking was necessary. However at that time I had not determined that the Agreement did not pass the test.

[34] Having made that finding, I will provide the Applicant with a further period of two weeks in which it may, if it wishes provide undertakings in relation to this matter.

DEPUTY PRESIDENT

Appearances:

Sheargold, G and Maconi, P for the Applicant

McCosker, A for the NSW Nurses and Midwives Association

Johnston, F for the HSU - NSW Branch

Hearing details:

2013

Melbourne to Sydney by video-link

July 8

 1 S.187(2)(d) of the FW Act.

 2   Award Modernisation [2009] AIRCFB 345 at 147

 3   Request under section 576C(1) - award modernisation consolidated version

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