RSL Care RDNS Limited T/A Bolton Clarke
[2024] FWCA 4166
•27 NOVEMBER 2024
| [2024] FWCA 4166 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
RSL Care RDNS Limited T/A Bolton Clarke
(AG2024/4114)
BOLTON CLARKE (VICTORIA) ENTERPRISE AGREEMENT 2024
| Aged care industry | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 27 NOVEMBER 2024 |
Application for approval of the Bolton Clarke (Victoria) Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Bolton Clarke (Victoria) Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by RSL Care RDNS Limited T/A Bolton Clarke. The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) provided to employees was a pre-6 June reforms version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical and procedural error and that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.
The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.
The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU), being the bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
The ANMF and the HSU[1] filed form F18s supporting approval of the Agreement. The HSU did not express a view about whether the Agreement passes the BOOT.
In its form F18, the ANMF has expressed a view that the Agreement does not pass the better off overall test.
The issue of concern to the ANMF is in relation to the hours of work of part-time employees and the circumstances in which overtime is payable.
Subclause 19.1(d) of the Nurses Award, provides that part-time employees are entitled to overtime for all time worked in excess of ‘the rostered daily ordinary full-time hours.’ The ANMF submits that the effect of the subclause is that overtime is triggered for part-time employees when their shift exceeds the standard full-time shift length, which may, for example be 7.6 or 8.1 hours.
Clause 2.2 of the Agreement deals with part-time employment and provides that before commencing employment, the employer and employee will agree in writing to the number of ordinary (guaranteed) hours to be worked each fortnight, the regular pattern of work, the days of the week the employee will work, and the starting and finishing times each day. In this respect, the Award is less beneficial, where the pre-employment agreement only relates to the guaranteed minimum number of hours to be worked and the rostering arrangements that will apply.
The Agreement also provides that where a part-time employee agrees in writing to change their roster to work additional hours or shifts (but less than the ordinary hours of full-time employees), the additional hours are paid at the ordinary hourly rate and not overtime. In short, part-time employees who agree in writing to work additional hours or shifts up to 76 ordinary hours per fortnight, or eight ordinary hours in a day (or 10 by agreement), will not be entitled to overtime. Whereas under the Nurses Award, if the usual rostered full-time shift is shorter than 10 hours, overtime would be triggered.
I accept that this aspect of the arrangements for part-time employees under the Agreement may be less beneficial for part-time employees compared to the Nurses Award. However, I am satisfied that overall, the Agreement meets the better off overall test.
In doing so, I am particularly cognisant that under the Agreement, part-time employees who agree to work additional hours or shifts at ordinary rates are able at any time that they wish, to change the number of additional hours previously agreed (including to zero). I have also taken into account that the rates of pay for nursing employees in the Agreement are between 20.07% and 44.81% above the Award rates of pay. Additionally, there are many other provisions that are more beneficial than the underpinning Award and the NES. They include, but are not limited to:
· higher shift, ‘in charge’, and on-call allowances
· long service leave entitlements;
· additional 3 days paid leave for volunteering;
· a shorter span of hours with ordinary hours commencing at 6.30am and not 6am;
· 15 days paid family and domestic violence leave;
· enhanced redundancy provisions;
· vehicle allowance;
· salary sacrifice arrangements;
· paid study and professional development leave.
These are of considerable value and relevance in assessing the better off overall test.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.
Accordingly, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met and that the Agreement passes the better off overall test.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2024. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Annexure A
[1] The Health Services Union Victoria No 1 Branch T/A the Health Workers Union and the Health Services Union Victoria No. 3 Branch T/A the Victorian Allied Health Professionals Association, both filed separate Form F18s supporting approval of the Agreement.
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