Royal Flying Doctor Service (Queensland Section) Limited

[2020] FWCA 2226

[2020] FWCA 2226

FAIR WORK COMMISSION

DECISION

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

Royal Flying Doctor Service (Queensland Section) Limited
(AG2020/602)

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

Health and welfare services
DEPUTY PRESIDENT ASBURY	BRISBANE, 29 APRIL 2020

Application for approval of the Royal Flying Doctor Service of Australia (Queensland Section) Limited Medical Officers Enterprise Agreement 2020 – 2023 - National Employment Standards – Fair Work Act s. 62 – Maximum weekly hours – Working hours and on call hours – BOOT and payment for working and on call hours – Agreement passes BOOT – Agreement approved.

Background

[1] Royal Flying Doctor Service of Australia (Queensland Section) Limited (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Royal Flying Doctor Service of Australia (Queensland Section) Limited Medical Officers Enterprise Agreement 2020 – 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Australian Salaried Medical Officers Federation, Queensland Branch (ASMOFQ), filed a Form F18 Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement in which the Branch Secretary declared that the organisation was a bargaining representative for the Agreement and supported its approval. ASMOFQ also indicated that it did not wish to advise the Commission about whether it agrees with one or more statements in the employer’s statutory declaration.

[3] Further, neither ASMOFQ nor any of the employee bargaining representatives for the Agreement responded to a letter from the Commission advising that if they wished to be heard on the application for approval of the Agreement they should contact the Commission within seven days to inform the Commission of this.

Maximum weekly hours issue

[4] A potential issue was identified by the Commission in relation to the manner in which Clause 17 of the Agreement deals with ordinary hours of work.  Clause 17.1 of the Agreement states that “[i]t is agreed a 12 hour duty shift is equivalent to an average of 9.5 hours worked.”  Clause 17.2 of the Agreement states that “All full-time Medical Officers will be rostered 16 duty periods per 4 week period.” In correspondence with the employer (copied to the bargaining representatives) the Commission queried whether the effect of the above provisions with respect to a full-time Medical Officer may amount to a requirement to work a total or an average of 48 ordinary hours per week giving rise to a potential inconsistence with s.62 of the Act.

[5] Section 62 of the Act provides that an employer must not require an employee to work more than 38 hours per week unless the additional hours are reasonable. Furthermore, s.62(2) of the Act provides that employees may refuse to work additional hours if they are unreasonable and s.62(3) contains a number of criteria to be taken into account.

[6] A response was requested from the employer to clarify how clauses 17.1 and 17.2 of the Agreement are consistent with the maximum weekly hours of work provisions contained Chapter 2 Part 2 – 2 of the Act which is part of the National Employment Standards (NES), including the rights of employees to refuse unreasonable additional hours. 

The position of ASMOFQ

[7] Upon the Commission requesting further information from the Applicant in relation to the hours of work issue, ASMOFQ communicated by email from an Industrial Officer advising that the matter had been raised during bargaining and that ASMOFQ and the bargaining representatives had sought clarity about the roster methodology and amounts used to calculate the annualised salary for the prescribed roster, but its concerns had not been addressed. The email went on to contend that members should be paid in full for all hours worked and that ASMOFQ supports approval of the Agreement by the Fair Work Commission on the basis that:

“1. RFDS ensures that employees are paid for all hours worked at their current and actual hourly rate of pay.

2. RFDS ensures that employees are better off under the Agreement than under the Award. 

3. RFDS ensures the safety of all employees regarding fatigue (as per fatigue management guidelines) as a result of the hours of work and rosters.”

[8] A similar issue was raised in an email sent to the Commission by an employee bargaining representative. On the basis that the RFDS had submitted a statutory declaration to the effect that the Agreement passed the better off overall test (BOOT) and ASMOFQ had not taken issue with the contents of statutory declaration, nor sought to be heard in relation to the application for approval of the Agreement, I caused my Associate to correspond with ASMOFQ querying whether its position with respect to the approval of the Agreement had changed.

[9] After an exchange of emails, in which my Associate informed ASMOFQ and employee bargaining representatives that my provisional view was that a response received from RFDS had addressed my concerns and that the Agreement should be approved, ASMOFQ corresponded with my Associate stating that if the Commission is satisfied that the Agreement passes the BOOT it should be approved and that ASMOFQ had no objection in this regard. ASMOFQ also stated that it maintained the position that employees should paid for all hours worked.

RFDS Response

[10] RFDS’ response to the Commission’s email via its legal representative Mr Rich Williamson of Seyfarth Shaw Australia, explained that there are two underpinning concepts dealing with an employee’s hours of work under the Agreement: “Rostered Duty Period” and “hours worked”. A “Rostered Duty Period” is a 12 hour window of availability during which an employee actually performs an average of 38 “hours worked” per week. A 12 hour Rostered Duty Period is not the same as an employee’s “hours worked”.  The Agreement does not provide that any employee is required to perform work for 12 hours during each Rostered Duty Period. 
[11] RFDS also contended that even if an employee was required to perform “additional hours” in excess of the average of 38 hours per week (including 12 hours on every Rostered Duty Period, which is highly improbable), employees would continue to enjoy the protections conferred by s.62 of the Act and would in any event remain better off overall as against the Medical Practitioners Award 2020 (the Award) on the basis that the salaries in the Agreement are significantly higher than the equivalent Award rates, incorporate an amount in respect of reasonable additional hours and reflect current salaried arrangements.

[12] RFDS submitted that (as the Commission had noted) the Agreement states:

•  Clause 17.1: “[i]t is agreed a 12 hour duty shift is equivalent to an average of 9.5 hours worked.”

•  Clause 17.2: “All full-time Medical Officers will be rostered 16 duty periods per 4 week period.”

[13] RFDS also submitted that the following Agreement provisions are relevant to an employee’s maximum weekly hours of work:

•  Clause 5, which defines:

○ Rostered Duty Period to mean: “a Rostered Duty Period during which an Employee is required to be contactable and available to perform any duties associated with the business of the Employer, excluding for any Medical Officer rostered to be an on-call supervisor (i.e. while not on duty). For rostering purposes, this equates to 12 hours as a Rostered Duty Period.” (our emphasis)

○ Hourly Rate to mean: “the Daily Rate divided by the full-time equivalent number of ordinary hours of work per day applicable to that role. For the purposes of payroll, this equates to 9.5 hours per day.” (our emphasis)

•  Clause 20.1 and 20.2, which defines the 12 hour Rostered Duty Periods for Day Duty and Night Duty, respectively.

•  Clause 4.2, which provides: “Where there is inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

[14] In relation to these provisions, RFDS submitted that a Rostered Duty Period (on Day Duty or Night Duty) is a 12 hour window of availability during which an employee will actually perform their average of 38 “hours of work” (for the purposes of s.62 of FW Act). On average, an employee will actually perform duty during 9.5 “hours of work” in each Rostered Duty Period, per clause 17.1.  This equates to an average of 152 “hours of work” per 4 week period, worked across 16 Rostered Duty Periods, per clause 17.2 (16 x 9.5 = 152).  On average, this is 38 “hours of work” per week (152 / 4 = 38).
[15] The remaining duty-free hours on each Rostered Duty period are “on-call” hours where an employee is required to be contactable and available to perform any duties associated with the business.  For the purposes of the BOOT, this time would attract an “on-call” payment for an employee engaged under the Award, per clause 20.3.  That time would not be “ordinary hours” or “overtime” hours under the Award, unless the employee actually works.  The Agreement’s significantly higher salaries (compared to the Award) incorporate an amount for on-call work.

[16] RFDS further submitted that if an employee was required to work 12 hours in each Rostered Duty Period (noting that such a requirement must be “reasonable” per s.62 of the Act), the Agreement’s significantly higher salaries would again result in the employee being significantly better off overall than they would be under the Award, taking into account the overtime penalties that would apply under the Award.

[17] RFDS pointed to the information in the Form F17 Employer declaration which appends a summary of Agreement provisions provided to employees to explain the effect of terms of the Agreement wherein employees were informed that: “This clause provides for 12 hour duty shifts during which an employee is available to work, within which an average of 9.5 hours of actual work (ordinary hours) is performed, over 16 duty periods in each 4 week cycle.” 
[18] RFDS also pointed to clause 4.2 of the Agreement which provides that the NES will apply to the extent of any inconsistency with the Agreement (per clause 4.2).  RFDS submitted that there is no inconsistency with the NES, and that the hours of work provisions are in line with the maximum weekly hours provision in the NES.  It follows that hours worked in excess of the average of 9.5 hours on 16 Rostered Duty Periods in a 4-week cycle would be:

•  “Additional hours” for the purposes of s.62 of the FW Act; and

•  “Overtime” hours for the purposes of clause 20 of the Award.

[19] Again, RFDS points to the fact that its ability to require an employee to work hours in excess of an average of 9.5 per Rostered Duty Period is subject to the requirement that such a direction is reasonable as provided in s.62 of the Act. In this regard, the Agreement’s significantly higher salaries as compared with the Award’s equivalent salaries incorporate an amount in respect of reasonable overtime or additional hours.

Consideration

[20] After considering the views of the bargaining representatives, I confirm my provisional view that the Agreement passes the BOOT and does not operate in manner that is inconsistent with the NES. While those views express dissatisfaction with the bargained outcome the communications from the bargaining representatives do not raise any matters which would cause me to reconsider my provisional view. In this regard, I accept the submissions of RFDS in relation to the maximum working hours issue. The Agreement specifically protects the entitlements of employees under the NES including s.62 in relation to maximum weekly hours.

[21] I am also of the view that that the hours of work provisions do not cause the Agreement to fail the BOOT. The issue for consideration in relation to whether the Agreement passes the BOOT is not whether employees are paid for all hours worked or all hours which they claim should be considered as “work”. Rather, the issue is whether each award covered employee or prospective employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

[22] Where the Commission is considering this question in the context of hours of work which are compensated by remuneration in excess of the relevant award it is convenient to frame that consideration on the basis of whether an employee working hours provided for in the Agreement, at times and on days that the Agreement provides for such hours to be worked, would be paid more under the Agreement for working those hours than the employee would be paid for working the same hours under the Award. This analysis may also require an assessment of the arrangements in relation to working hours that the relevant agreement allows in addition to the hours actually worked at the time the assessment is undertaken.

[23] In the present case, the Agreement as assessed by the Commission’s Agreements Team provides for salaries that range from 138% to 243% above Award rates. I accept that all rostered duty hours are not working hours and that there is a relevant distinction under the Award between an employee working and being on call. The salaries in the Agreement remunerate employees for both working and being on call and I am satisfied that the Agreement passes the BOOT. Further, I am satisfied that if all the hours included in a rostered duty period are considered working hours, employees would be paid more under the Agreement than they would be paid for working those hours under the Award.

[24] I also note that there is an error in the Form F16 and Form F17 which identify the employer as Royal Flying Doctor Service (Queensland Section) Limited while the Agreement provides in clause 2 that it applies to the Royal Flying Doctor Service of Australia (Queensland Section) Limited with that entity being defined as the “Employer” in clause 5 of the Agreement. The Notice of Employee Representational Rights was issued by Royal Flying Doctor Service of Australia (Queensland Section) Limited.

[25] The legal representative for RFDS confirmed that the entity which employs employees covered by the Agreement is correctly known as Royal Flying Doctor Service of Australia (Queensland Section) Limited. I consider it appropriate to correct the erroneous reference to the employer in the Form F16 and Form F17 and/or waive the irregularity in the form in which the application and employer declaration were made so that those documents refer to the correct employer. The reference to the employer in the NERR is correct and no action in that regard is required.

Conclusion

[26] The Australian Salaried Medical Officers Federation, Queensland Branch being a bargaining representative for the Agreement, has given notice under s.183 of the Act that the organisation wants to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[27] I am satisfied that each of the requirements of ss.l86, 187 and 188 as are relevant to this application for approval have been met.

[28] The Agreement is approved in accordance with s.54 of the Act and will operate from 6 May 2020. The nominal expiry date of the Agreement is 6 May 2023.

DEPUTY PRESIDENT

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