RR Private Limited T/A Royal Rehab Private Petersham Hospital
[2024] FWCA 2694
•26 AUGUST 2024
| [2024] FWCA 2694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
RR Private Limited T/A Royal Rehab Private Petersham Hospital
(AG2024/2125)
THE ROYAL REHAB PRIVATE PETERSHAM HEALTH PROFESSIONALS, SUPPORT SERVICES AND MEDICAL PRACTITIONERS ENTERPRISE AGREEMENT 2023
| Health and welfare services | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 26 AUGUST 2024 |
Application for approval of the Royal Rehab Private Petersham Health Professionals, Support Services and Medical Practitioners Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Royal Rehab Private Petersham Health Professionals, Support Services and Medical Practitioners Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by RR Private Limited T/A Royal Rehab Private Petersham Hospital. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Typographical errors were made in the application in relation to Clause 30.3.1 and 50.1 of the Agreement. Clause 30.3.1 of the Agreement stated that ‘the NES provides that an employee who is defined as a shiftworker under clause 29.3.1’, there was no clause 29.3.1. Similarly, clause 31.1.2 of the Agreement stated that ‘a shiftworker as defined in clause 29.3.2 will be paid the higher of’, there was no clause 29.3.2. The Applicant provided an undertaking to address the confusion. This is also an error would be amenable to a variation under s.218A.
Clause 50.1 of the Agreement which states ‘Family and domestic violence leave shall be in accordance with the NES. To the extent of any inconsistency between clause 49 and the NES, the NES will prevail.’ Clause 49 of the Agreement is in relation to ceremonial leave. In response to this the Applicant provided an undertaking. I note the error is similar to the error in clause 30.3.1 and would equally have been amenable to variation under s. 218A.
Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the Agreement applied to the employee than the relevant modern award.
Here the relevant awards are the Health Professionals and Support Services Award 2020 and the Medical Practitioners Award 2020. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.
An issue was raised in relation to Level 4 – PP4 classified employees being paid 1.14% below award rate. In response the Applicant provided an undertaking.
A further issue was raised in relation to the Medical Practitioners Award 2020 pay rate comparisons provided by the Applicant. In response the Applicant clarified that Royal Rehab Hospital Petersham only engage “Doctors in Training” namely, Interns, Resident Medical Practitioners, Registrars or Senior Registrars. The Applicant also provided the below comparison table, relevant to those who are employed:
Clause 23 of the Agreement relates to annualised wages. An issue was raised as the Agreement does not state the specific amount employees will receive above the Award rates, nor that the employer will undertake reconciliation within a reasonable timeframe, it does not appear to be in accordance with the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664 to ensure employees under the annual salary arrangements are better off under the Agreement. In response the Applicant provided an undertaking.
A further issue was raised in relation to part rime safeguards as the Agreement appears to be silent in relation to the entitlement under clause 10 of the Award for part-time employees to vary their agreement by agreement in writing. In response to this the Applicant provided an undertaking.
Apprentices are mentioned in clause 55.1.4 of the Agreement in relation to termination employment. However, rates of pay for apprentices were not provided to the Commission. In response the Applicant provided an undertaking.
Clause 21 of the Award provides that causal employees will be paid 275% when working public holidays. Clause 51.1.2 of the Agreement is inconsistent with this as it states that for a casual employee, they will be entitled to 200% of the casual hourly rate. In response to this the Applicant provided an undertaking.
Given the explanations provided by the Applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met.
A copy of the undertakings is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
An issue was raised in relation to Clause 4 of the Agreement dealing with individual flexibility agreements. The issue that was raised was that the clause does not meet the requirements in s. 203 including s. 203(2)(a) and 203 (7)(b) of the Act. Section 202(4) provides that where an individual flexibility arrangement in an enterprise agreement does not include a flexibility term as described the model flexibility term is taken to be a term of the agreement. I note in accordance with the requirement in s. 201(b)(i) that the model flexibility term is included in the Agreement.
The Agreement was approved on 26 August 2024, and, in accordance with s.54, will operate from 2 September 2024. The nominal expiry date is 2 September 2028.
DEPUTY PRESIDENT
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Annexure A
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