Royal Flying Doctor Service of Australia (Queensland Section) Ltd

[2020] FWCA 3369

[2020] FWCA 3369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Royal Flying Doctor Service of Australia (Queensland Section) Ltd
(AG2020/742)

ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (QUEENSLAND SECTION) LIMITED NURSES ENTERPRISE AGREEMENT 2020 - 2023

Health and welfare services industry
DEPUTY PRESIDENT LAKE	BRISBANE, 26 JUNE 2020

Application for approval of the Royal Flying Doctor Service of Australia (Queensland Section) Limited Nurses Enterprise Agreement 2020 – 2023 - Loaded Rates, Passing of the BOOT agreement approved.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement known as the Royal Flying Doctor Service of Australia (Queensland section) Limited Nurses Enterprise Agreement 2020-2023 (the Agreement). The Agreement is a single enterprise agreement and the application for approval was lodged with the Commission on 17 March 2020.

[2] The Queensland branch of the Australian Nursing and Midwifery Federation, the Queensland Nurses and Midwives Union (QNMU/the Union), was a bargaining representative for the Agreement in accordance with s.176 of the Act.

[3] On 19 March 2020, the QNMU filed a Form F18 – Statutory declaration of employee organisation in relation to the application for approval. The QNMU does not support the approval of the Agreement by the Fair Work Commission (the Commission). In summary, the QNMU does not support approval of the Agreement because it considers that the Agreement does not pass the Better Off Overall Test (the BOOT). In their F18, the QNMU gave notice under s.183 that they wished to covered by the Agreement.

[4] On 1 April 2020, I wrote to the parties providing the Commission’s modelling, including pay rate comparisons between the Agreement and the Modern Award, and expressed a preliminary view that the significantly higher rates of pay in the Agreement resulted in the Agreement passing the BOOT despite the less beneficial terms. I sought that the QNMU advise whether it maintained its objection and, if so, in relation to which matters. This correspondence also set directions for the filing of material in relation to that objection.

[5] By way of correspondence received by the Commission on 3 April 2020, the Union confirmed that it maintained its objection in relation to several matters.

[6] The parties have subsequently filed material in accordance with my directions and various extensions that were granted to the parties. Having considered the material I have determined that the application should be dealt with on the papers. Neither party has requested that the Commission hold a hearing or conference in relation to the application.

BOOT

QNMU

[7] The QNMU submits that “significant entitlements” contained in the Nurses Award 2020 (the Award) are omitted from the Agreement. 1 It is submitted that the consequence of these omissions is that not every employee who would be covered by the agreement is better off overall and, therefore, the Agreement does not pass the BOOT. The QNMU submits that the Loaded Rates Agreements2 Full Bench established the test to be applied when determining whether an agreement containing loaded rates of pay passed the BOOT.

[8] The QNMU accepts that an employee engaged under the Agreement as a day worker, working 38 hours per week, receives a 12% loading and is better off than they would be under the Award. 3 However, those employees in receipt of the 25% loading, what are termed shiftworkers for the purposes of the Agreement, may not be better off overall in all circumstances. The QNMU accepts that on face value, if the rostering principles contained in clause 19 of the Agreement are strictly adhered to and if meal breaks in accordance with clause 27.1(a) of the Award are provided, then the 25% loading “may be sufficient”.4

[9] The QNMU submits that the nature of the Applicant’s operation means that employees will “often” work in excess of the limits on shifts provided for in clause 19 of the Agreement. The 25% loading would need to be enough to compensate for the following Award entitlements:

“(a) Hours of duty worked outside of the Monday to Friday Day Duty Period (clause 29 of the Award);

(b) Weekends and public holidays (clause 26 and 32 of the Award);

(c) Meal breaks and missed meal breaks (clause 27 of the Award);

(d) Hours of work (clause 21 and 22 of the Award);

(e) Overtime (clause 21 and 28 of the Award);

(f) On call/recall (clause 28.5 and 28.6 of the Award);

(g) Meal allowance for overtime worked (clause 16.3 of the Award);

(h) Leave Loading (clause 31.7 of the Award); and

(i) Extra week of leave for shift workers (clause 31.1(a) and (b) of the Award).” 5

[10] To determine the application of the BOOT, at least in respect of existing employees, the Commission must consider existing roster patters worked by various classes of employees as at the test time. The Applicant had not, at the time of the QNMU’s submissions, provided such rosters. The QNMU provided the Commission with rosters for February 2020 of 25 nursing employees. Those rosters reveal that of the 25 nursing employees identified, 13 worked between 15 and 24 shifts. The QNMU submits that it is not uncommon for full-time employees to work in excess of the 15 or 16 shifts prescribed by clause 19 of the Agreement.

[11] The QNMU has provided an example calculation in relation to the actual working hours over 19 shifts in an actual roster period. The QNMU calculates that on the basis of this roster, employees would range from $800.20 to $1617.45 worse off per month, compared to the Award. The sample roster contains:

“The breakdown of the shifts worked for the 28-day period consists of the following:

(a) nine normal shifts worked between Monday and Friday;

(b) one Administration shift;

(c) four shifts on a Saturday;

(d) four shifts worked on a Sunday; and

(e) three-night shifts (two of those shifts occur on a Saturday and Sunday).

The hours worked for each shift are the following:

(a) Day shift is 0900 to 2100 hours (on call from 0800hrs).

(b) Night shift is 1800 to 0600 hours (on call from 1700hrs).

(c) An administration shift is 0800 to 1700 hours.

(d) Employees are required to be on call one hour before their shift.” 6

[12] In relation to the disputes procedure, the QNMU submits that the disputes procedure contained in the Agreement is “substantially” different from the Award procedure. It is submitted that the procedure in the Agreement requires an employee to escalate the dispute through additional levels without clear timeframes before being able to commence an industrial dispute in the Commission.

[13] The QNMU also submits, beyond the Agreement not passing the BOOT, that the Agreement presents “significant safety concerns” with employees working 12-hour shifts as a standard without meal breaks or rest pauses. The statutory trade-off for shiftworkers, an additional week’s annual leave, is limited by the Agreement and the definition of shiftworker that it provides. The QNMU maintains that approval of the Agreement would be contrary to the objects of the Act, specifically, the guaranteed safety net.

[14] In reply submissions, the QNMU maintains that Loaded Rates Agreements does not stand for the proposition that the Commission need not concern itself with a roster that is not practicable or cannot or is unlikely to be worked.

[15] The additional beneficial terms identified by the Applicant are said to be overexaggerated. The additional terms apply to a narrow group of employees and are applicable in defined circumstances whereas the shift work stipulated by the Agreement applies to a wider group of employees and is within the Applicant’s control.

[16] The QNMU has otherwise maintained its position in relation to most of the specific issues raised in submissions. However, the QNMU has proposed that a number of undertakings “would ensure” that employees are better off overall. Those proposed undertakings relate to breaks, time in lieu, hours of duty and hours of work, shift worker definition, dispute resolution procedure and on call allowance.

Applicant

[17] The Applicant submits that the QNMU’s submissions have not taking into account the value of, or payment for, ‘Additional Hours’ as provided for in the Agreement. In addition, the “numerous” financial and non-financial benefits provided by the Agreement are such that each employee would be better off overall.

[18] The Applicant accepts that the Loaded Rates Agreements decision is relevant. However, the Applicant submits that Loaded Rates Agreements stands for the proposition that where an Agreement permits a particular pattern of working hours or a roster pattern which would see a class of employees not being better off overall, the Agreement may nonetheless pass the BOOT if the objective evidence establishes that the particular pattern of work is “not practicable, or cannot or is unlikely to be worked”.

[19] The Applicant has articulated the key definitions in understanding the Agreement as follows:

“A Roster Period is a 28- day calendar period which work is rostered.

Hours of Duty, in essence, our employee’s ordinary hours of work for the purposes of the award. A full-time employee will work 38 hours of duty per week, subject to those hours of duty being averaged by the Applicant over up to 3 roster periods (i.e. over a period of up to 84 calendar days). An employee may agree with the applicant in which the hours of duty over up to 4 roster periods (i.e. 112 calendar days). Therefore, an employee will work up to 152 hours of duty per roster before they receive additional amounts or accrue Time in Lieu (TIL) for Additional Hours (hours in excess of an average of 152 hours per Roster Period), pursuant to clause 18.

A Rostered Duty Period is a window availability which an employee’s Hours of Duty duty will usually be worked. It is a ‘period during which an Employee is required to be contactable and available to perform any duties associated with the business of the Employer in accordance with clause 20.1. An employee’s Hours of Duty Period commence at the earliest of the following events:

(a) when the employee is paged for a task; or

(b) On attendance at the workplace as directed by the MCBO (Manager Clinical Base and Operations or equivalent).”

[20] The Applicant submits that the QNMU’s calculations have proceeded on a false premise, being that employees do not actually perform work for 12 hours on each Rostered Duty Period. On average, the Respondent submits that an employee will perform:

“(a) 15 Rostered Duty Periods per Roster Cycle (Flight Nurses) will work 10.133 Hours of Duty per Rostered Duty Period (152 divided by 15).

(b) 16 Rostered Duty Periods per Roster Cycle (PHC Nurses) will work 9.5 Hours of Duty per Rostered Duty Period (152 divided by 16).” 7

[21] Should an employee average more than 10.133 or 9.5 Hours of Duty per Rostered Duty Period, they accrue time in lieu or are paid additional amounts for additional hours. Both these options are one a one for one basis. These amounts are in addition to base salary. The calculations of the QNMU do not take these provisions of the Agreement into account.

[22] Even applying a worst case scenario, the Applicant submits that employees are at better off by at least 17%. The Applicant has also provided sample calculations to the Commission. The Applicant submits that the result is as follows:

“In Tab 1, the following classifications are highlighted:

(a) In Yellow: Flight Nurse Practitioner (non-midwifery) - 25 % loading. This is “least best off” Flight Nurse classification with a 25% loading incorporated (LBO Flight 25%). Its base rate is approximately 181.17% of the Award equivalent (ie this is the classification in this category which is closest to the equivalent Award rate).

(b) In Green: PHC Nurse (non-midwifery) - 25% loading. This is “least best off” PHC Nurse classification with a 25% loading incorporated (LBO PHC 25%). Its base rate is approximately 194.55% of the Award equivalent.

(c) In Orange: PHC Nurse Practitioner (non-midwifery) - 12% loading. This is “least best off” classification overall with a 12% loading incorporated (LBO 12%). Its base rate is approximately 162.33% of the Award equivalent.” 8

[23] Even thought the worst case scenario still, on the Applicant’s submission, satisfies the BOOT, the Applicant submits that it is a shift or roster patter that “is not practicable, or cannot or is unlikely to be worked” as discussed by the Full Bench in the Loaded Rates Agreements decision. The reason that the Applicant submits this is the case is because the Applicant submits that such a roster is likely to be inconsistent with:

“(a) Clause 15.6 of the Agreement, which provides an employee may be removed from the workplace and not required to work a Rostered Duty Period where their hours appear likely to exceed 152 in a Roster Period (on average), which would be a daily occurrence;

(b) The Roster Limits in clause 19 of the Agreement which amongst other things limit night shift work; and

(c) The Applicant’s fatigue principles (albeit these do not form part of the Agreement).” 9

[24] The Applicant has also pointed to a number of other beneficial terms, which have not been dealt with by either party in their straight calculations. Those more beneficial terms are said to be:

“(a) A more beneficial higher duties allowance (Agreement cl.27 / Award cl.30);

(b) Increased superannuation payments in certain circumstances (Agreement cl.32 / Award cl.20);

(c) A day’s paid cultural leave per annum (Agreement cl.43 / Award cl.33);

(d) $60 per hour penalty rate for work required to be done on a rostered day off (which applies where an employee works more than the usual 15 or 16 Rostered Duty Periods per Roster Period on average) (Agreement cl.21.4);

(e) Continuing education entitlements of between $2,255 and $6,765 per annum for eligible employees (Agreement cl.24);

(f) $1,000 per annum immunisation endorsement (including pro-rata payment) for eligible employees (Agreement cl.25);

(g) Training allowance of $5,352.93 per annum for eligible employees (Agreement cl.26);

(h) 3 days’ leave for disabilities associated with upper respiratory tract infection (Agreement cl.36.5 - 36.9);

(i) 12 days of study leave per annum (or 20 for an endorsed Nurse Practitioner Candidate) (Agreement cl.41); and

(j) 5 days’ paid domestic violence leave (Agreement cl.42).” 10

[25] As specifically relates to the QNMU’s calculations based on the sample roster, the Applicant submits that the QNMU has misconstrued the roster. The sample roster does not represent the employee working 19 Rostered Duty Periods. Additionally, the sample roster represented rostering arrangements under the current enterprise agreement, which has a different shift structure to that of the Agreement. The Applicant submits that the roster equates to 16 shifts taking into account half day travel days and including leave and administration days.

Consideration

Loaded Rates Agreements

[26] As was unanimously confirmed by the five Member Full Bench in the Loaded Rates Agreements decision, satisfying the BOOT requires the Commission to find that each award covered employee and prospective employee would be better off under the Agreement than under the relevant modern award. 11 The requirement that “each” employee be better off is a rigorous one and is synonymous with “every” employee being better off overall. The corollary of this proposition is that if “any” employee is not better off overall then the Commission cannot be satisfied that the Agreement passes the BOOT. Applying these propositions to loaded rates agreements, the Full Bench said:

“Thus, in an agreement containing loaded rates in whole or partial substitution for award penalty rates, it is not sufficient that the majority of employees - even a very large majority - are better off overall if there are any employees at all who would not be better off overall.” 12

[27] In considering the application of the BOOT, the Commission is entitled to assume, in the absence of evidence to the contrary, that a particular employee is better off if a class of employees to which the employee belongs is better off overall. 13 As identified by the Full Bench in Loaded Rates Agreements, the Explanatory Memorandum to the Fair Work Bill 2009 indicated that the entitlement to proceed on this basis would mean that the Commission was not required to enquire into each employee’s individual circumstances.14 For assumptions made under this provision in the Act to be of any utility, the class of employee identified would need to be effected by the enterprise agreement in the same way to produce a common BOOT outcome.15 An example provided by the Full Bench of an inappropriate classification is where the class involved work on different roster patterns.

[28] In relation to prospective employees, the task becomes more difficult and necessarily involves some level of speculation. Each case is to be determined on the particular facts and circumstances of the case. In some cases, a high degree of speculation may be necessary; in others almost no speculation might be required.

[29] The Commission is entitled to have regard to the existing practice and arrangements of the workforce. This may involve consider common patterns of working hours and other aspects of the workforce for example the prevalence of weekend or non-standard working hours. Sample rosters may be an effective method of performing this function but there is a limit.

[30] While I do not think it ultimately of much assistance in this matter, in my view, the Full Bench’s reasons do include reasoning to the effect that the Commission is not required to consider a particular working pattern or roster where objective evidence is such that the particular pattern or roster is not practicable, or cannot or is unlikely to be worked. 16 The most obvious example that comes to mind is a working pattern involving actual work on 24 hours a day, 7 days a week; that is an employee continuously working and never stopping. It is beyond argument that such a pattern is not practicable, able to, or likely to be, worked. The Commission would not, therefore, be required to reach a level of satisfaction that a prospective employee working such a pattern was better off overall. That is the effect of what the Full Bench was saying.

[31] The BOOT is an overall assessment of whether an employee would be better off overall when comparing the agreement’s more beneficial terms with those terms that a less beneficial. This assessment takes into account entitlements not otherwise conferred by a modern award, monetary and non-monetary benefits, benefits accessible at the employee’s choice and contingent benefits.

Application of the BOOT

[32] This is not a case where there is a substantial disparity between the scope of the agreement, the classifications to which it applies and any wider potential operation than currently exists in this workforce. To that extent, the application of the BOOT to this Agreement is confined. The area of dispute, as I understand it, relates to actual and potential hours of work and patterns of work the workforce may or will perform under this Agreement.

[33] The QNMU points to the fact that many provisions of the Agreement are within the Applicant’s discretion. However, in my view, it is also true that the Agreement provides for significant limits and safeguards. The Agreement does not allow the Applicant carte blanche in terms of hours of work and having no affect on the entitlements of employees. I accept the Applicant’s submissions to this effect.

[34] I have reached my view for a number of reasons:

● The supremacy of the National Employment Standards is expressly maintained by the Agreement; 17
● The Agreement includes mandatory consultation in relation to major change and change to regular rosters or ordinary hours of work; 18
● The ordinary hours of work for full-time employees are 38 ‘Hours of Duty’ per week;

● Hours of Duty commence at the earlier of an employee being paged for a task or otherwise attending at the workplace;
● Hours of Duty, and therefore ordinary hours of work, may be averaged over up to 3 Roster Period (being 84 calendar days) and “should be” in accordance with Roster Limits set by the Agreement;
● Hours of Duty may be averaged over 4 Roster Periods (being 112 calendar days) but only by agreement and it is not possible to average hours over more than 4 Roster Periods;
● Shift workers shall be rostered for a maximum of 15 Rostered Duty Periods in any Roster Period, subject to averaging arrangements;
● Employees other than shift workers shall work a maximum of 16 Rostered Duty Periods in any Roster Period;
● The Applicant may, in some circumstances, change rosters, the maximum number of Rostered Duty Periods, shift lengths or Roster Periods. This is subject to consultation obligations, an explicit requirement to ensure employees remain better off overall and, presumably, the disputes procedure;
● Shiftworkers accrue time in lieu on a 1:1 basis for work in excess of an employee’s Hours of Duty in each Roster Period or overaged over Roster Periods as permitted by the Agreement;
● The Agreement caps time in lieu at 5 days, which may be exceed on request of an employee and in special circumstances;
● Time in lieu may be cashed out and, if cashed out, attracts superannuation;
● Clause 19, which extends for 2 pages, establishes numerous roster limits;
● The Applicant is obliged by clause 19 to ensure various events do not happen 19 and certain minimum thresholds are maintained20;
● The roster limits are on almost all occasions subject to variation but expressly by agreement with the employee concerned and it appears to me there is no limit on employees granting or withholding their agreement; 21
● An employee is free to raise concerns regarding work related fatigue and, if appropriate, alternate rostering arrangements may be implemented.

[35] The Applicant asserts that employees do not actually perform work for 12 hours each rostered duty. They state that prior to employee commencing their Hours of Duty, they will be on call (including the ability to be contacted for duty up to 1 hour before a rostered duty period start time for priority one or critical/immediate patients.

[36] The outcome of the analysis conducted by the Applicant, which I accept, is provided in the below table. The modelling also included a worst-case scenario model, that was 15×12 hours of actual work per Rostered Duty Period.

Classification	Agreement as a % of Award (“worst case scenario” model)	Agreement as a % of Award (“average hours” model)
LBO Flight 25%	117.34% (Tab 2)	121.25% (Tab 3)
LBO PHC 25%	125.31% (Tab 4)	129.87% (Tab 5)
LBO 12%	N/A	140.84% (Tab 6)

[37] In the worst case scenario shift or roster pattern noted above, the Applicant contends that it “is not practicable, or cannot or is unlikely to be worked” as per the Loaded Rates Agreements. The Applicant noted working up to 40 additional hours and the maximum number of weekend and night shifts is likely to be inconsistent with various safeguards. 22 I do not consider it necessary to make a finding as to whether this roster is or is not a pattern of work falling within the reasoning of the Loaded Rates Agreement, because I accept that employees are nonetheless better off under this scenario.

[38] The Applicant submits that the Agreement was greater by a margin on the Award not only based on the worksheet, but also based on further considerations that would provide further benefits above the Award, which I have recounted above. I have taken these matters into account.

[39] Several further matters that were raised by the Union were Public Holidays, Meal Breaks, Recall, Extra Week of leave for Shift workers and the Dispute procedure.

[40] The modelling included in the submissions of the Applicant indicated the following:

“Public Holidays

Assuming no shift penalties apply, an LBO Flight 25% employee would earn the following additional amounts if they worked for 12 hours on a public holiday (see Tab 7, Subheading B):

(a) $470.34 for each weekday public holiday;

(b) $274.36 for each Saturday public holiday; and

(c) $137.18 for the Sunday public holiday.

In the highly unlikely event that an LBO Flight 25% employee worked all 11 public holidays, they would earn an additional $4,448.60 than if those days were not public holidays.

The “closest” classification to the Award, the LBO Flight 25%, earns 117.34% of the Award rate or $24,558.21 per annum (on the “worst case scenario” model).” 23

[41] The Applicant submits that there is sufficient “buffer” in the Agreement to compensate for public holidays.

[42] On the matter of meal breaks, the Applicant noted that the agreement does not expressly provide set meal breaks due to the nature of employment. The working conditions are unusual in that employees are often acting under emergency situations, or while in the air or in remote locations. Staff are free to take breaks between periods of activity. These breaks are in paid time.

[43] The matter of meal breaks is not in the opinion of the Commission one that would cause the Agreement to be less beneficial than the Award.

[44] I make no comment on the matter of recall as the Union did not provide any detail regarding their objection apart from noting that the Agreement contains a fatigue safety net that does not appear in the Award.

[45] The Union raised issue with the number of Rostered Duty Periods in a roster period.

[46] Flight Nurses work 16 Rostered Duty Periods per Roster Period under the current enterprise agreement. This will be reduced to 15 under the proposed Agreement. Through the operation of clause 21.4, the Applicant may require an employee to work more than the maximum number of Rostered Duty Periods in a Roster Period. The Applicant’s practice is only do this by agreement, and to pay for 12 hours’ work (ie $720 for work on a rostered day off), including in circumstances where less than 12 Hours of Duty are worked. On this basis employees working additional shifts are in a superior position vis a vis the Award.

[47] The QNMU accepts that if the rostering confines provided by clause 19 of the Agreement are complied with and meal breaks are provided for in accordance with the Award. On my view, clause 19 is prescriptive. The Applicant “must” or “shall” comply with those limits. Agreement of the employee is required in virtually all instances where the Applicant seeks to not comply with those limits. The QNMU’s submissions that the “reality” of such clauses is that agreement is coaxed or encouraged is unhelpful in the absence of any absence to justify such a submission.

[48] The Applicant may require alterations to existing rosters in consultation with an employee and by agreement, or by consultation only in circumstances of unforeseen operational matters or contingencies. In certain circumstances an employee may be paid an additional $720 for covering a 12-hour shift. I am satisfied that the QNMU’s calculations do not adequately take into account the benefit of time off in lieu provisions contained in the Agreement.

[49] In short, I am satisfied that the Agreement passes the better off overall test. It is not in dispute that employees receiving the 12% loading are better off overall. I am satisfied that all other employees, including those that will receive the 25% loading are better off overall. In particular, I am satisfied that the loaded rates adequately compensate for the hours of work, weekends and public holidays, meal breaks and missed meal breaks, overtime, on-call/recall, meal allowances and leave loading. I will deal with the additional week’s leave for shift workers below.

Dispute Resolution

[50] Section 186(6) of the Act requires that an enterprise agreement contain a term about settling disputes and provides the minimum requirements for such a term. I do not understand the QNMU to submit that the disputes procedure in the Agreement does not provide for those minimum requirements and I am in any event satisfied that it does. Clause 8 of the Agreement provides for the Commission to settle disputes about matters arising under the agreement and the National Employment Standards. Clause 8 also permits employees to be represented for the purposes of the disputes procedure contained in that clause.

[51] For the reasons I have expressed above, I have taken into account the differences between the dispute resolution procedure in the Agreement and the Award as a matter relevant to my assessment of the BOOT.

[52] I do not accept the QNMU’s characterisation of the term as being detrimental or less beneficial than the Award or otherwise “substantially” different from the Award. It is true that the procedure within the Agreement sets out a number of preliminary steps to be taken before escalating a dispute and that on face value the procedure requires more steps than the Award. However, on one view, the Award procedure may require that a dispute be escalated through multiple levels of management in that the Award requires an employee to discuss their dispute with “more senior levels” of management as appropriate. The Award provision itself appears to consider the potential for more than one level of management being involved in the escalation of a dispute, as appropriately.

[53] It is correct to say that the Agreement procedure provides for escalation without clear timeframes. However, in my view, this is not less beneficial than the Award that provides no timeframes at all. I also consider it a beneficial matter to employees that the Agreement provides for mandatory arbitration. The Award only provides for arbitration by consent of the parties.

Shift workers

[54] Section 196 of the Act applies if an employee is covered by an Agreement and a modern award covers the employee and defines the employee as a shift worker for the purposes of the National Employment Standards. Clause 31.1(b) of the Award relevantly defines a shiftworkers as someone who:

“(i) is regularly rostered over seven days of the week; and

(ii) regularly works on weekends.”

[55] The Agreement defines shiftworkers in clause 35.2 as:

“Employees who are shift workers for the purposes of the NES are continuously rostered 24 hours a day for 7 [days] per week, work public holidays and regularly work Saturdays and Sundays, and will receive an additional week of annual leave per annum…”

[56] The Applicant submits that the “practical application” is identical between the Agreement and the Award. Unfortunately, the Applicant says nothing about the application of the actual words used in the Agreement. In my view, the Award does define a class of employees as being shiftworkers and, on the face of the words used, that class is not the same as the class defined by the Agreement.

[57] The Applicant has provided an undertaking that is consistent with the requirements of s.196 of the Act and satisfies any concerns regarding the above definition.

Conclusion

[58] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[59] Pursuant to s.190(3) of the Act, I have accepted undertakings from the Applicant. In accordance with ss.191(1) and 201(3) of the Act, the undertakings are taken to be a term of the Agreement.

[60] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 3 July 2020. The nominal expiry date of the Agreement is 26 June 2023.

DEPUTY PRESIDENT

 1   QNMU Outline of Argument paragraph 3.

 2   [2018] FWCFB 3610.

 3   QNMU Outline of Argument paragraph 9.

 4   Ibid at paragraph 12.

 5   Ibid at paragraph 14.

 6   Ibid at paragraphs 25 to 26.

 7   Applicant’s submissions paragraph 16.

 8   Ibid at paragraph 27.

 9   Ibid at paragraph 37.

 10   Ibid at paragraph 40.

 11   The Loaded Rates Agreements [2018] FWCFB 3610 at [100] citing Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11].

 12   The Loaded Rates Agreements [2018] FWCFB 3610 at [100].

 13   Fair Work Act 2009 s193(7).

 14   The Loaded Rates Agreements [2018] FWCFB 3610 at [101]; Explanatory Memorandum to the Fair Work Bill 2008 paragraph 818.

 15   Ibid.

 16   The Loaded Rates Agreements [2018] FWCFB 3610 at [115].

 17   Clause 4.3.

 18   Clause 9.

 19   For example clauses 19.4 and 19.5.

 20   For example clauses 19.6, 19.7, 19.10, 19.11 and 19.12

 21   Except for clause 19.13, which provides for an employee not refusing to agree unless the refusal is reasonable in the circumstances.

 22   Applicant’s submissions, [37].

 23 Ibid, [48]-[50].

Printed by authority of the Commonwealth Government Printer

<AE508380   PR720533 >