s.185—Enterprise agreementRSL Care Limited T/A RSL Care
[2016] FWCA 1260
•15 MARCH 2016
| [2016] FWCA 1260 |
FAIR WORK COMMISSIONDECISION |
Fair Work Act 2009
s.185—Enterprise agreementRSL Care Limited T/A RSL Care
(AG2015/7876)
RSL CARE ENTERPRISE AGREEMENT 2015
Aged care industry | |
COMMISSIONER JOHNS | MELBOURNE, 15 MARCH 2016 |
Application for approval of the RSL Care Enterprise Agreement 2015.
[1] On 29 December 2015 RSL Care Limited T/A RSL Care (RSL) made an application for approval of the RSL Care Enterprise Agreement 2015 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). The Agreement is a single-enterprise agreement.
[2] The Agreement was lodged within 14 days after it was made.
[3] On 30 December 2015 the Queensland Nurses’ Union of Employees (QNU) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the QNU answered “No”.
[4] The QNU opposed the approval of the Agreement on the basis that the Commission cannot be satisfied that every employee to whom the Agreement would apply and who is covered by the Nurses Award 2010 (the Award), will be better off overall under the Agreement than under the Award because of the detrimental or less beneficial terms of the Agreement as follows:
a) Clause 1.8 of the Agreement stipulates that some shift workers would be deprived of 1 weeks annual leave per year;
b) Clause 2.3 of the Agreement provides lesser minimum engagement for casual employees;
c) Clause 2.3 provides that overtime would be payable at ordinary rates.
d) Clauses 3.1 and 3.1.6 would allow the employer to engage employees for a limited term whereas the Award does not.
e) Clause 3.6.5 of the Agreement includes an abandonment of employment provision which would permit an employee to be dismissed where they are unavoidably or justifiably absent from employment (e.g. in hospital, unconscious) for 10 days, whereas the Award would not permit such a dismissal.
f) Clause 3.1.2 (c) of the Agreement provides for an automatic reduction to an employee's weekly hours e.g. from 74 to 20 hours per fortnight, cutting their ordinary fortnightly wages by 73% whereas the Award would not allow the ordinary hours and wages of part-time employees to be reduced without the employee's agreement in writing. Moreover Clause 3.1.2 (c) also imposes restrictions (which do not exist in the Award) upon employees, who are mostly part-time, as to when they would be able to change the days of the week upon, or times at which, they would be available to work.
g) Clause 4.1.6 provides that employees who requesting a roster change which is refused by the employer would subsequently forego "those hours, even where that would result in the employee working less than the minimum hours.”
h) Clause 3.1.4 (c) provides that the 25% casual loading is only provided in addition to ordinary hours, exclusive of overtime.
i) Clause 4.1.1 (d) provides ordinary hours may be up to 10 per day (or up to 12 by agreement) which deprives part-time employees of up to 2 hours overtime penalties per day. The rostered daily ordinary full-time hours for RSL employees are often 8 hours per day, or otherwise fewer than 10 hours.
j) The Agreement provides for ordinary hours to be increased to 12 hours by agreement, and that such agreement may be only verbal in circumstances that may occur frequently. This creates the potential for employees to be verbal led about whether they so agreed and deprived of up to 4 hours or more of overtime penalties per day. That potential for detriment to employees does not exist under the Award.
k) Clause 4.1.3 provides that employees would be forced to work broken shifts without mutual agreement and allows employees to be made to have an unpaid break between broken shifts of up to 10.75 hours.
l) The Agreement provides for no afternoon shift penalty whereas The Award provides for a shift penalty of 12.5% for an afternoon shift, which is one commencing not earlier than 12.00 noon and finishing after 6.00 pm on the same day. The Agreement provides instead for a penalty for work only after 8pm in community care, or after 6pm in residential care, of 23.5 %. Many employees in community care either never work after 8pm. Most work by employees in residential care is done between 6am and 6pm. Many employees sometimes work in residential care after 6pm on weeknights but work a lot more hours between 12pm and 6pm on weekdays when no penalties would be payable under the Agreement, than they do after 6pm.
m) Clause 4.1.6 (f) of the Agreement provides that the employer will provide a community care employee with as little as 24 hours’ notice or even less i.e. only before the end of the employee's previous shift, of a change to the staring time of the next shift. The Award requires 7 days’ notice for the employer to change an employee's roster, except in the case of illness, emergency or mutual agreement.
n) Clause 4.1.7 provides that 'hours' worked may be 'banked' "at the rate that applied at the time the employee worked". This is a scheme to delay the payment of wages, to an unlimited extent, that would otherwise be payable on the fortnightly payday following the working of the hours. The Award requires wages to be paid fortnightly unless otherwise agreed up to monthly maximum period.
o) The Agreement does not describe or define an employee who is covered by the Award (which defines the employee as a shift worker for the purposes of the NES) as a shift worker for the purposes of the NES, in contravention of s.196 (2).
p) The Agreement contains non-permitted matters.
q) Clause 3.6.5 of the Agreement contains an unlawful term in that it purports to permit an employee to be dismissed where he or she is unavoidably or justifiably absent from employment e.g. in hospital, unconscious, for 10 days, which modifies the application of such an employee's protection from dismissal under Part 3-2 of the Act in a way which is detrimental to such an employee.
r) The proposed Agreement was not sufficiently explained to employees.
[5] On 30 December 2015 the Australian Nursing and Midwifery Federation (ANMF) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the ANMF answered “Yes” and “No” making the same submissions as the QNU opposing the Agreement, but indicating that it wishes to be covered in the case that the Agreement is approved by the Commission.
[6] On 4 January 2016 the Australian Workers’ Union (AWU) filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” the AWU indicated that it neither supports nor opposes the approval of the proposed Agreement. The organisation indicated that it wanted to be covered in the event that the Agreement would be approved by the Commission.
[7] On 5 January 2016 Together Queensland filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” Together Queensland answered “No.”
[8] Together Queensland opposed the approval of the Agreement as follows:
a) Clause 2.3 of the Agreement provides that employees be required to attend work for a minimum of one hours pay. Clause 10.4 of the Award provides for a minimum engagement of 3 hours.
b) Clause 3.1.2 of the Agreement provides for the automatic reduction of minimum hours for part time employees when there are changes of availability. The Award indicates agreement on a regular pattern of work will be recorded in writing and variations will be made by mutual agreement and recorded in writing.
b) The Agreement provides that changes to hours whilst mutually agreed to have no requirement that they be recorded in writing.
c) Clause 4.1.6 of the Agreement states where an employee requests a roster change and it is not operationally viable for the employer to provide those rostered hours at another time within the roster period, the employee shall forgo those hours, even where that would result in the employee working less than the minimum hours for that roster period." This effectively causes an employee to be penalised for merely requesting a change to the roster and in its current form is an unlawful provision.
[9] On 12 January 2016 United Voice filed a Form 18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?” United Voice answered “Yes” and “No” indicating that it wishes to be covered in the case that the Agreement is approved by the Commission. However United Voice also opposed the Agreement as follows:
a) Clause 2.3 of the Agreement provides for a minimum engagement of only one hour to attend compulsory meetings, whereas the Award provides for a minimum engagement of two hours for a casual employee and does not contemplate employees being called into work for only one hour.
b) Clause 2.3 of the Agreement also provides the one hours of pay will be at ordinary rates, even if the meeting attendance is in overtime, whereas an employee under the Award who is required to work, including by attending a meeting during overtime, must be paid at time and a half, double time, or double time and a half depending on the circumstances.
c) Clauses 3.1 and 3.1.6 of the Agreement provides for limited term employment whereas the Award does not. The Agreement would therefore allow an employee's employment to be terminated without good cause or compensation simply by the employer fixing an expiry date for the employment. Clause 3.1.6 makes no provision for limited term employment to occur by way of contract or otherwise by agreement with the employee.
d) Clause 3.1.2(c) of the Agreement provides that the employer may automatically reduce a part-time employee's weekly hours e.g. from 74 to 20 hours per fortnight, whereas the Award does not allow the ordinary hours and wages of part-time employees to be reduced without the employee's agreement in writing. This provision also imposes restrictions on roster flexibility which do not exist in the Award.
e) Clause 3.1.4(c) of the Agreement provides that a 25% casual loading is only paid on ordinary hours, not overtime. The Award provides for a 25% loading which must be paid for all hours worked including overtime.
f) Clause 4.1.1(d) provides that ordinary hours for part-time employees may be up to 10 per day (or up to 12 by agreement) which deprive these employees of up to 2 hours of overtime penalties per day. The rostered daily ordinary full-time hours for RSL employees are often 8 hours per day, or otherwise fewer than 10 hours.
g) The Agreement allows employees to be made to have an unpaid break between broken shifts of up to 10.75 hours. This would require employees to either remain at the work premises for up to 10.75 hours without pay or go home or elsewhere, increasing the commute time to work also. The 2 additional journeys will usually incur additional travel expenses for the employee.
h) The Agreement provides that the employer will provide a community care employee with as little as 24 hours' notice of a roster change, or even less i.e. only before the end of the employee's previous shift, of a change to the starting time of the next shift. The Award required 7 days' notice for the employer to change an employee's roster.
[10] On 1 February 2016 RSL provided written undertakings (Exhibit RSL1) addressing some of the concerns raised by the above mentioned Union Organisations as well as concerns raised by the Commission, as follows:
a) Clause 3.6.5 (Abandonment of Employment) of the Agreement will be applied in a manner that complies with the National Employment Standards (Undertaking 1).
Or in the alternative if this is not sufficient to address the concerns of the FWC, the following undertaking will apply.
b) Clause 3.6.5 (Abandonment of Employment) of the Agreement will not be applied and therefore will have no effect. (Undertaking 2)
c) Clause 3.1.4 (Casual Loading) of the Agreement will be applied in such a manner that all Casual employees shall be paid an additional casual loading of 25% for each hour worked (other than public holidays) (Undertaking 3).
[11] On 9 February 2016 the Commission sought approval from the Unions involved of the Undertakings provided by RSL. Directions were subsequently made and the matter was listed for hearing for Thursday, 25 February 2016 at 2.30 pm after the various Union Organisations involved presented a range of issues opposing the approval of the Agreement.
[12] On 11 February 2016 QNU gave written notice that it accepted Undertaking 2 but not Undertaking 1 or Undertaking 3 as follows:
a) Undertaking 1 is not meaningful because it is too general and vague. The undertakings does not even identify to which NES provision it relates. The employer’s submissions do not demonstrate any understanding of how subclause 3.6.5 Abandonment of Employment could be applied in breach of an NES or could be less beneficial for employees than any of the NESs. If RSL does not understand how the clause is ‘broken’ they will not know how to use their extremely general proposed undertaking number 1 to ‘fix’ the ‘broken’ clause. That proposed undertaking is therefore not meaningful, even to RSL and is therefore unlikely to ever be applied by RSL.
Incidentally, the employer’s relevant submissions are wrong insofar as they imply that every absence from work without authority or prompt explanation is misconduct. The employer has failed to consider that a failure to make contact in relation to an absence may be outside the employee’s control e.g. due to serious illness or injury or lack of access to, or breakdown of, telecommunications equipment e.g. in a remote area.
b) Undertaking 2 is much more certain and would assuage the QNU’s concerns that subclause 3.6.5 is unlawful and contributes to the Agreement failing to meet the BOOT.
c) There are 2 deficiencies in Undertaking 3. One is that the phrase “(other than public holidays)” in it will mean the casual loading is not paid for any work on public holidays (both ordinary hours and overtime) whereas the Nurses Award 2010 (Clause 10.4) requires the 25% causal loading to be paid for each hour worked including on public holidays because such requirement is general and no other term of the Award denies payment of the casual loading on public holidays.
The other deficiency arises from the inclusion of the phrase “will be applied in such a manner.” Subclause 3.1.4 of the Agreement (as voted upon) is not a clause which can be applied to overtime hours in acceptable manner as well as an unacceptable manner. Every application of subclause 3.1.4 to overtime hours would have resulted in non-payment of the casual loading. The way in which subclause 3.1.4 is less beneficial for employees than the Award is, therefore, not in the manner in which it is applied, but is in the very essence of the subclause itself. The undertaking ought to be “All casual employees must be paid an additional casual loading of 25% for all hours worked (including overtime) despite subclause 3.1.4 of this Agreement.”
Even with Undertaking 2 and an acceptable undertaking concerning subclause 3.1.4, the Agreement will still fail the BOOT and other approval requirements as outlined in the QNU’s objections in the F18.
[13] On 11 February 2016 the AWU gave written notice of its acceptance of the proposed Undertakings as follows:
a) The AWU is of the view that Undertaking 3 should not be that the “[clause] will be applied in such a manner….” - it should merely read “casual employees shall be paid an additional casual loading of 25% for each hour worked (other than public holidays).” In any case, if the Commission is satisfied that this undertaking ensures no employee will be worse off than the Award, this undertaking is acceptable.
[14] On 11 February 2016 Together Queensland provided formal submissions, as follows:
a) Clause 3.1.2 (c) provides a mandatory reduction of minimum hours equivalent to the average hours worked on the particular day in the previous six months.
The provision in the Modern Award is found at clause 10.3. In particular:
“(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”
The Agreement removes the Award requirement that variations to the hours of work for a part-time employee have to be agreed upon and imposes a mandatory reduction in the minimum hours of work.
In respect of clause 4.1.6 which states as follows:
“Where an employee requests a roster change and it is not operationally viable for the employer to provide those rostered hours at another time within the roster period, the employee shall forgo those hours, even where that would result in the employee working less than the minimum hours for that roster period.”
This is not a situation where an employee has irrevocably declared that they are unavailable for work, but merely requested a change in the roster. The clause imposes a penalty on the employee that the hours requested to be changed is removed from their work schedule and they receive reduced pay.
Given the small increase to the Award wages the Commission cannot be satisfied that that the meagre increase in wages from the Award would compensate an employee so much so that they would be better off overall under the Agreement.
Furthermore we would see this provision as contrary to section 340 of the Fair Work Act 2009. An employee seeking to obtain a roster change is exercising a right under section 341(b) of the FW Act; in particular the employee is seeking to implement a process described by a workplace instrument.
That process is 4.1.6(c) of the proposed Agreement
“If an employee seeks to alter a posted roster, they shall give the employer at least seven (7) days’ notice of the request for a roster change. The employer shall not unreasonably refuse a roster change.”
To have a clause in a certified Agreement which provides a mandatory penalty on an employee merely seeking to implement a process described by a workplace instrument is abhorrent.
As such the undertakings suggested by the applicant in our view are insufficient to enable the Agreement to be certified.
b) Further BOOT Issues
Employees in the administrative stream in classifications described in the Agreement as Intro to Level 5 have wage rates between 3.03-3.38% more than the relevant award.
We would say the range of provisions in the Agreement different to the Award outlined in question 3.5 of the employer’s F17 some of which we will outline below are such that the Commission cannot be satisfied that employees would be better off overall under the Agreement:-
- Spread of Hours 6am-6pm Mon-Sun in lieu of 6am-6pm Mon-Fri
- Shift loading in clause 26.1( an employee who worked from 10am-6.30pm on just 2 days a week would be 4.2% worse off by not receiving the shift loading)
We note that the employer has made submissions about indicative rosters or current practices.
The Full Bench decision in United Voice v Secom Australia Pty Limited T/A SECOM Security [2015] FWCFB 1776 said
“…it is necessary to consider what the Agreement allows to be done in respect to rosters not just what occurs under typical rosters to be sure that each employee and prospective employee is better off overall at the test time.”
These are not simply technical considerations, it must be remembered that 1027 employees did not approve this Agreement.
The current certified Agreement that this Agreement seeks to replace has wage classifications up to 26% above the Award rates, the alterations to the Award conditions in this proposed Agreement might arguably have passed the Better Off Overall Test (“BOOT”) if a classification system provided similar benefits above the Award rate of pay, however the introduction of the new classification system with rates of pay slightly higher than the Award rate is not sufficient in light of the Agreement’s material changes to the underpinning awards.
We would submit regardless of the specific undertakings offered by the employer they are insufficient to ensure the Agreement satisfies the better off overall test.
[15] On 16 February 2016 United Voice provided formal submissions as follows:
a) Clause 2.3 of the Agreement provides for a minimum engagement of only one hour to attend compulsory meetings. The Award provides for a minimum engagement of two hours for casual and part-time employees (at clause 22.7) and does not contemplate employees being called into work for only one hour.
b) Clause 2.3 of the Agreement also provides the one hour’s pay will be at ordinary rates, even if the meeting attendance is in overtime. Contrast with the Award wherein attendance (be it at a meeting or otherwise) during overtime must be paid at time and a half, double time, or double time and a half depending on the circumstances.
c) The Agreement does not limit the number or frequency of such occasions when an employee may be required to attend work for only one hour’s pay.
d) Clauses 3.1 and 3.1.6 of the Agreement contemplate employment for a limited term, a concept not provided for in the Award. Clause 3.1.6 contains no additional provisions for circumstances in which limited term employment may occur, or for the manner in which such employees are engaged. It is also apparent that limited term employees are still able to be terminated with notice, which raises further questions as to the necessity of this employment category.
e) Clause 3.1.2(c) of the Agreement enable the employer to automatically reduce an employee’s weekly hours e.g. from 74 to 20 hours per fortnight. The Award contains no comparable provision, unless mutual agreement, in writing is reached.
f) Clause 4.1.3 of the Agreement enables broken shifts to be worked, “to suit the needs of the customer”. Unlike the Award (see clause 22.8), mutual agreement between the employee and employer is not needed. Further, the Award provides that the maximum break between parts of a shift shall not exceed four hours.
g) Clause 4.1.6(f) of the Proposed Agreement enables as little as 24 hours’ notice of roster changes for Community Care employees. Contrast with clause 22.6(c) of the Award which requires seven days’ notice to a change of roster, except in emergent circumstances. United Voice acknowledges the comments of the Applicant in relation to matters of rostering, and the necessity for there to be flexibility in the Community Care sector. However, it is the view of United Voice that any flexibility must be balanced against providing certainty to employees. The Award provides a minimum safety net in relation to changes to rosters and contains sufficient measures to balance flexibility and certainty.
h) Based on the foregoing, United Voice submits that there may be certain employees covered by the Proposed Agreement who may not be better off overall compared to the Award.
i) Should the Commission be satisfied that the relevant statutory requirements have been satisfied and that the Proposed Agreement should be approved, United Voice confirms its desire, under s.183, to be covered by the Agreement.
[16] At the hearing on 25 February 2016:
a) RSL was represented by Mr A Aspromourgos for Mr D Finger of the RSL in attendance;
b) The ANMF and the QNU was represented by Mr K Crank;
c) The AWU was represented by Mr J Harding;
d) The ASU and Together Queensland was represented by Mr K McKay;
e) The HSU was represented by Ms F Johnston, and;
f) The NSWNMA was represented by Ms A Hamza.
[17] The HSU and the NSWNMA maintained their support for the approval of Agreement and declined to make any submissions.
The ASU - Roster Changes
[18] At the hearing, the ASU submitted that clause 4.1.6(d) of the Agreement had the effect of penalising the employees merely for asking for a roster change. Mr McKay indicated that this section was contrary to provisions at Part 3-1, section 340 of the Act and therefore an objectionable term. Furthermore, under 194(b) it would become an unlawful term.
[19] Mr Aspromourgos responded that the clause was not intended to have the effect that Mr McKay was concerned about. The phrase really meant that if the employee was unable to work the originally rostered hours, then that employee would forego those hours. Mr Aspromourgos stated that RSL would be prepared to provide an undertaking to that effect.
[20] The Commission put it to Mr Aspromourgos that the preferred wording of the Undertaking would be that where an employee requests a roster change but the employee is unable to work as per the roster and it is not operationally viable to provide them with other hours, then that employee will forego the hours that are rostered.
[21] Mr McKay was satisfied that an Undertaking to this effect would remove the unlawfulness of the clause but would still present BOOT issues.
ASU - Roster changes and the BOOT
[22] Mr McKayfurther submitted that the above provision presented issues pertaining to the Better off Overall Test (BOOT). He indicated that in respect of the previous agreement that existed with clerical employees, some of whom would have received under that previous Agreement rates of pay approximately 26.00% above the Award, have now had a new classification structure put in place which places the classification approximately 3.00% above the Award. He indicated that the new rates were not high enough to compensate for the deficiency caused by clause 4.1.6(d). Mr McKay went on to state that under this Agreement, employees could now regularly be rostered on weekends where previously they could not.The QNU’s position was that where you have an increase of 3.00% above the Award, the ability for the employees to pass a BOOT test is much constrained.
[23] Mr Aspromourgos accepted that the Agreement provides a shift penalty regime quite different to that applying under the Aged Care Award. The two significant differences were that all shift loadings were paid on an hourly basis between 6 pm and 6 am at a rate for all hours at 23.50%. This shift loading is far greater than the shift loadings in the underlying award but the other significant differences, the way that the loading applies under the Award is that the loading applies for the entirety of the shift, rather than just hours that fall within the spread of 6 pm to 6 am.
[24] Mr Aspromourgos went on to indicate that the example used by Mr McKay was a worst off scenario to the extent that under the Agreement the penalty regime component is only half an hour, whereas under the regime of the Award the entirety of that shift would be paid at the shift loading. Mr Aspromourgos concluded that such a shift roster is possible but unlikely to be worked.
[25] The Commission put it to Mr Aspromourgos that there is still a possibility that if the Agreement was approved on the basis that the above mentioned shift roster would not likely be implemented, this would not necessarily prevent RSL from implementing said shift roster, rendering some employees worse off. The Commission requested that the applicant provide an undertaking to the effect that it would not put in place rostering arrangements which would result in a disadvantage to employees as against the Award. Mr Aspromourgos would seek instructions from RSL in this regard.
ASU - Spread of hours and Shift loading
[26] Mr McKay addressed the spread of hours and applicable shift loading as detrimental. Mr Aspromourgos put it plainly that the Agreement provides a shift penalty regime quite different to that applying under the Aged Care Award.
[27] The two significant differences are that all shift loading paid on an hourly basis between 6 pm and 6 am at a rate for all hours at 23.5%. So that shift loading is obviously far greater than the shift loadings in the underlying award but the other significant differences, the way that the loading applies under the Award is that the loading applies for the entirety of the shift, rather than just hours that fall within the spread of 6 pm to 6 am. Mr McKay gave the example that had been made in the ASU’s written submissions, where if someone was working two shifts from 10 am to 6.30 pm, compared to the Award, that they would be worse off.
[28] Mr Aspromourgos contended in response to this that for the purposes of the BOOT, it is not a requirement that every theoretical roster arrangement be addressed by way of a specific calculation, and that in making the assessment of the BOOT, what Mr McKay had not done was consider the variety of other benefits; non-financial or other forms of financial benefit, that were contained in the Agreement. Mr McKay’s submissions did not address other matters such as the $500 one off payment, changes to annual leave provision, etc. In making a determination of the BOOT all of those matters would have to be considered.
[29] The Commission put it to Mr Aspromourgos that the applicant would be provided with a week to think more upon all of the issues which would be raised at the hearing and to submit what undertakings it would then be prepared to put forward.
The QNU
[30] Mr Crank maintained that the QNU opposed the Agreement including the undertakings that were proposed by the employer and that new undertakings would be required from the employer in order to ensure that the Agreement met the requirements of the Act.
QNU - Roster Changes
[31] Mr Crank submitted that the QNU agreed with the ASU on the issue of clause 4.1.6(d) penalising employees for merely asking for a roster change. Mr Crank agreed that while an undertaking would remove the unlawfulness of the provision, it would still present a BOOT issue as outlined by Mr McKay.
[32] The Commission reiterated that this submission had been heard and instructed Mr Aspromourgos to consider it in the requested Undertakings to be provided within a week from the hearing.
QNU - Definition of a Shift Worker for the purposes of the NES
[33] Mr Crank submitted that theAgreement also does not contain a definition of shift worker for the purpose of the NES, which is a contravention of s 196(2). It contains a definition of shift worker but s 196 expressly requires that an Enterprise Agreement contain a definition of a shift worker for the purposes of the NES, and this Agreement does not do that.
[34] The Commission asked Mr Crank whether an Undertaking stating that "for the avoidance of doubt the definition of shift workers here is for the purposes of the NES" would satisfy his concern.
[35] Mr Crank agreed that it would resolve the particular issue.
QNU BOOT Issues
QNU - Annual leave for Shift workers
[36] Mr Crank submitted thatsome shift workers would be deprived of one week's annual leave per year by the Agreement, compared to the Award. The Agreement provides a definition of shift worker for the Nursing and Allied Health streams, which means that a person is only a shift worker under the Agreement if they are continuously rostered 24 hours a day for seven days a week, and they are regularly rostered to work those shifts, presumably on an individual basis, and that the employee works regularly on public holidays.
QNU - Lesser Minimum Engagement
[37] Mr Crank submitted that clause 2.3 of the Agreement provides for a minimum engagement of only one hour to attend compulsory meetings, whereas the Award provides a minimum engagement of two hours for a casual employee and it does not contemplate any employees being called into work for only one hour.
[38] Mr Crank went on to submit that the Agreement also provides that time worked, which under the Award would be paid as overtime at penalty rates, would only be paid at ordinary base rates under the Agreement. Clause 2.3 again provides that the one hour of pay for attending compulsory meetings would be at ordinary rates, even if the meeting attendance is in overtime. Whereas an employee under the Award who is required to work, including by attending a meeting during overtime must be paid time and a half, double time or double time and a half depending on the circumstances of the meeting.
QNU - Limited Term Employment
[39] Mr Crank submitted that the clauses 3.1 and 3.1.6 of the Agreement are also less beneficial by the inclusion of a limited term employment provision. Mr Crank explained his understanding of Limited term employment as a concept in which there is a date fixed for employment to end and that the employer is entitled to terminate the employment of that employee at any time with notice, but otherwise at any time prior to the expiry date of that limited term employment.
[40] Mr Crank went on to give an example albeit difficult to quantify the detriment. He went on to give the example of an employee engaged on a limited term basis under this Agreement for a period of six months, who at the end of which would be terminated without any reason other than a certain date has been reached. Had the term not existed in the Agreement, that employee in this example would have continued in employment with RSL for five years, so in other words their employment has been cut short by four and a half years because of this term in the Agreement. In this circumstance the employee would have lost four and a half years remuneration and four and a half years of all of the intrinsic benefits of employment, such as a sense of accomplishment, satisfaction, dignity and all those things that have been recognised in modern times as intrinsic benefits of employment.
[41] The Commission categorised the arrangement described by Mr Crank as a Maximum Term arrangement which is not uncommon, to which Mr Aspromourgos agreed.
[42] The Commission clarified to parties that people who are employed for a maximum period under maximum term contracts are not employees employed for a specific period. The Commission found that Mr Aspromourgos demonstrated that clause 3.1.6 did not intend to have employees covered by the Agreement to be classified as employees engaged for a specified period (the maximum period). The Commission suggested that Mr Aspromourgos should seek instructions about an Undertaking which reflects better language than what is used in the proposed Agreement.
QNU - Abandonment of Employment
[43] Mr Crank submitted that clause 3.65 of the Agreement is an Abandonment of Employment clause. The relevant award for this matter does not provide for such provisions. The employer subsequently offered two undertakings in relation to that. The original submissions made by the QNU contended that the second alternative undertaking would be acceptable which is that it would not be applied and therefore have no effect.
[44] The Commission agreed with the position of the QNU and suggested to Mr Aspromourgos that the second alternative Undertaking would be acceptable to form part of the new set of Undertakings to be provided.
[45] Mr Aspromourgos agreed to provide that undertaking and that is consistent with the Commission’s position.
QNU - Automatic Reduction of Hours for Part Time Employees
[46] Mr Crank submitted that clause 3.1.2(c) of the Agreement provided for an automatic reduction of ordinary hours without the requirement for mutual agreement. The effect of this provision would be that the employee would work less and therefore result in receiving less remuneration.
[47] Furthermore that the above clause required part-time employees to give no less than 30 days' notice of any changes to their availability. Mr Crank indicated that there was no such requirement in the Award. The award instead provides that simply the rostering arrangements will be agreed in respect of part-time employees.
[48] The Commission asked for a response from RSL. Mr Aspromourgos gave the example where if an employee who was initially available from Monday to Friday were to approach their employer because their personal circumstances had changed, therefore no longer being available from Wednesday to Friday, their availability would be reduced from five days to two days. This provision intends to reduce hours at that point in time based upon the reduced availability.
[49] The Commission suggested that the provision could be explained in plainer English in order to be better understood. This suggestion should be considered when drafting new Undertakings.
QNU - Casual Employees and Overtime
[50] The next issue then is casual employees losing their 25.00% casual loading when they work overtime. The Nurses Award provides for 25.00% loading which must be paid for all hours worked which includes overtime but, less beneficially, the Agreement in clause 3.1.4C provides that the 25.00% casual loading is only paid on ordinary hours which obviously excludes overtime.
[51] Mr Crank took issue with wording of the Undertaking provided previously by RSL. Mr Crank submitted that the undertaking should simply be that 25.00% casual loading is paid on all hours worked including overtime
[52] Mr Aspromourgos maintained that this issue had been addressed in the previous Undertakings.
[53] Mr Crank maintained that whilst the intention of the Undertaking may have been sufficient, the wording was not.
[54] The Commission suggested that the better way to frame the Undertakings would be to refer to the clause, and insert "in place of the current clause X will be this clause Y". That way the wording of the clause that is to be substituted into the Agreement is clearer.
QNU - Part Time Employees and Overtime
[55] Mr Crank submitted that the Award provides that all time work by part-time employees in excess of the rostered daily ordinary full-time hours will be overtime, whereas clause 4.1.1(d) of the Agreement provides that ordinary hours may be up to 10 per day or 12 by Agreement.
[56] Mr Crank went on to further explain that within RSL, the rostered daily ordinary full-time hours are often 8 hours per day in which case the overtime is payable to part-time employees in excess of 8 hours per day whereas under the Agreement overtime will not be paid unless more than 10 hours is worked or 12 hours in the case of Agreement for 12-hour shifts. The Agreement would deprive part-time employees of, in many cases, between two and four hours of overtime penalties per day.
QNU - Broken Shifts
[57] Mr Crank submitted that clause 4.1.3 of the Agreement provides for employees to be forced to work broken shifts even without pretence of mutual Agreement. This is in contrast to the Award which does not permit broken shifts as section 21.5 of the Award provides that the hours of work will be continuous except for meal breaks.
[58] Mr Crank further explained the QNU’s position on this issue, that the Agreement effectively allows employees to be made to have an unpaid break between broken shifts of up to 10.75 hours which would require employees to either hang around the workplace being unpaid for up to 10.75 hours. Furthermore if employees would leave the workplace during this unpaid break, the additional costs associated with the journey to and from the workplace would serve as a further detriment.
[59] Mr Aspromourgos assured the Commission that clause 4.1.3 did not operate in the way Mr Crank claimed. He stated that the clause was not to be used at all; it was used predominantly in community care for employees covered by the Social Community, Home Care and Disability Services Industry Award 2010 and provided greater protections to those employees in the corresponding award entitlement. There is no intention on the part of RSL to apply this clause to Nurses.
[60] The Commission suggested that an Undertaking be provided to explain this plainly.
QNU - Afternoon Shift Penalties
[61] Mr Crank submitted that the Agreement does not provide afternoon shift penalties except for work after 6pm or 8pm in the case of employees covered by the Nurses Award working in community care.
QNU - Notice for a Roster Change
[62] Mr Crank submitted that the Agreement provides for six days less notice of a rostered change than the Award. The award requires seven days' notice for the employer to change an employee's roster except in the case of illness, emergency or mutual agreement (clause 25.4 of the Award).
[63] In contrast to the Award, clause 4.1.6(f) of the Agreement provides that the employer will provide a community care employee with as little as 24 hours' notice or even less, that is only before the end of the employee's previous shift which may be a lot less than 24 hours before and that is notice of a change to the starting time of the next shift.
QNU - Banking Hours
[64] Clause 4.1.7 of the Agreement provides that hours worked may be banked at the rate that applied at the time the employee worked, which the QNU believes to be a scheme to delay the payment of wages to an unlimited extent as there is no date by which those wages must be paid and they are wages that would otherwise be payable on the fortnightly payday following the hours being worked.
[65] The award in clause 18.1 requires that wages be paid fortnightly unless otherwise agreed up to a monthly maximum period.
[66] Mr Aspromourgos maintained that this clause could not be seen to be a disadvantage to an employee who voluntarily elects to forego wages now, to take it at a later time which better suits their personal circumstance and situation.
[67] This ends the QNU’s submissions pertaining to the BOOT.
QNU - Non-Permitted Matters
[68] Mr Crank submitted that the Agreement makes a number of references to the relationship between employees under the Agreement and customers of the employer. The QNU contended that the Agreement could only contain matters which pertained to the relationship between the employee and the employer.
[69] Mr Crank explained his position by referring to the definition of "customer" in clause 1.8 of the Agreement. “
• “Customer” means any of the following: Current or potential clients, current or potential.
[70] Mr Crank went on to say that the reference to "including relationships with customers" made in the Agreement was a difficulty. In particular, Mr Crank referred to clause 5.3.2, a customer cancellation allowance. This clause allowed for an employee to travel to a customer's location whilst not receiving any payment unless having already commenced the travel. That particular provision, Mr Crank believed, was probably within the employment relationship. However the definition of "customer" goes way beyond a person for whom an employee might be providing service on behalf of the employer. It extends into relationships with potential clients and is open having the employer attempt to create obligations on the employee pursuant to the Agreement; obligations on the employee in relation to potential customers of RSL. That would be outside the employment relationship according to the QNU.
The AWU
[71] Mr Harding submitted the position of the AWU principally in relation to the Undertakings already provided by RSL.
AWU - Broken Shifts
[72] Mr Harding submitted a concern raised by Mr Ronald of United Voice. He submitted that broken shifts are provided for in the Aged Care Award as well, but only by mutual agreement, and that doesn't seem to be reflected in the current or in the proposed agreement. His concern on behalf of the AWU was that under the proposed Agreement, broken shifts would be, by mutual agreement, for those who derive their conditions from the Aged Care Award.
Events post the hearing
[73] At the conclusion of the hearing the Commission proposed to issue directions that the applicant file and serve any final attempt at providing Undertakings by 12 noon on Friday 4 March 2016, and then, by 4 pm on Wednesday 9 March 2016, each of the unions file in the Commission and serve on the applicant any final statement about whether they do not oppose, support or oppose (and if oppose on what continuing basis) the approval of the Agreement.
[74] On 4 March 2016 the Applicant subsequently provided written undertakings. A copy of the undertakings is attached as Annexure A.
[75] It is to be observed from the following table that the Applicant elected not to take up the invitation to provide an undertaking in relation to a number of matters raised during the hearing:
Issue identified by the Unions during the hearing on 25 February 2016 | Whether the issue was then the subject of an undertaking in the final version of the undertakings filed by the applicant on 4 March 2016 |
Roster Changes | Yes |
Limited Term Employment | Yes |
Abandonment of Employment | Yes |
BOOT issues and roster changes | No |
Shift loadings | No |
Definition of shift worker | No |
Annual leave for shift workers | No |
Lesser Minimum Engagement | No |
Automatic reduction of hours for part timers | No |
Overtime for casual employees | No |
Overtime for part time employees | No |
Broken Shifts | No |
Afternoon shift penalties | No |
Notice for roster changes | No |
Banking hours | No |
Non-Permitted matters | No |
[76] The response of the Unions to the final form of the undertakings can be summarised as follows:
Union | Response |
QNU | Reluctant acceptance |
AWU | Acceptance |
NSWNMA | Acceptance |
HSU | Acceptance |
ASU | Continued opposition |
Together Queensland | Acceptance |
[77] The Commission is 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.
Further Submissions provided by the ASU
[78] On 9 March 2016, the ASU advised the Commission that despite wishing to be covered if the Agreement is approved, it was opposed to the new undertakings provided by RSL. The submissions provided by ASU were as follows:
a) Day workers working on a Saturday or a Sunday under the Award would receive double time, under the Agreement they would receive 150% for Saturday or 175% for Sunday.
b) Under the Award there are a range of shift penalties 110%,112.5%, 115% that when triggered apply for the whole shift, the Agreement as a shift penalty of 123% which does not apply for the whole shift but just the hours worked that trigger the allowance.
c) There is total open discretion under the Agreement as to the hours employees will be rostered, e.g. there is no fixed definition of an afternoon shift 2.00pm to 10.00pm etc. So whilst typical rosters have been offered that show they pass the requirements of the BOOT test there is no provision restricting the employer to utilise such rosters.
d) Given the small increase to the Award wages the Commission cannot be satisfied that that the meagre increase in wages from the Award would compensate an employee so much so that they would be better off overall under the Agreement. For example, an employee that worked 10.30am-6.36pm for argument sake would be paid under the Award 7.6 X $19.8947 X1.1 = $166.32, whilst under the Agreement they would be paid 0.6 X $20.5485 X 1.23 +7 X $20.5485 = $159, a difference of $7.32.
e) A standard shift under the Agreement would be paid 7.6 X $20.5485= $156.17. A standard shift under the Award would be paid 7.6 X $19.8947 = $151.20, a difference of $4.97
f) In a 4 week period the Agreement provides approximately a $9 advantage in increased annual leave and leave loading for a full time employee. So part time employees who worked two 10.30am shifts and one shift with no penalties each week, would be disadvantaged.
g) A full time employee who worked 9 out of 20 shifts commencing at 10.30 am and the remaining 11 as ordinary shifts would be worse off $65.88 - $63.67(including the annual leave advantage) = $2.11 worse off.
h) There are already shifts that commence at 11.00am, it is not fanciful to suggest a shift may commence at 10.30am, just 30 minutes earlier during the next three years. There is certainly the possibility that this could occur under the Agreement, there is no provision that would preclude it.
i) We note that the employer has made submissions about indicative rosters or current practices. However all rosters provided by the employer has been for full time employees, no indication has been given that part time employees would be better off under the Agreement. Furthermore the gap between the Agreement hourly rate and award hourly used in these calculations have been 3.32%, there are classifications where the gap between the Agreement rate and award rate is narrower 3.22% and 3.03%, so the disadvantage is more pronounced.
j) In AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle & 7-Eleven Bexley (AG2015/6175) Commissioner Roe said:
‘However, consistent with the Full Bench decision [2015] FWCFB 1776 it is necessary to consider what the Agreement allows to be done in respect to rosters not just what occurs under to be sure that each employee and prospective employee is better off overall at the test time. The potential for calculations to be affected by changed or less typical rostering practices must be taken into account…….’
These are not simply technical considerations, it must be remembered that 1027 employees did not approve this agreement.
k) The current certified agreement that this agreement seeks to replace has wage classifications up to 26.00% above the Award rates for employees performing administrative duties, the alterations to the Award conditions in this proposed agreement might arguable have passed the Better Off Overall Test if a classification system provided similar benefits above the Award rate of pay, however the introduction of the new classification system with rates of pay slightly higher than the Award rate is not sufficient in light of how the Agreement materially changes the underpinning awards.
Consideration
[79] Having considered all that has been submitted in this matter and subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.
[80] Specifically, under s.186(2)(d) of the FW Act (where the Commission must be satisfied that the agreement passes the BOOT), the Commission, as presently constituted is satisfied that, as at the test time, each award covered employee, and each prospective award covered employee, for the Agreement will be better off overall if the Agreement is applied to them than if the relevant modern award applied to them (having regard to the test in s.193 of the FW Act). In coming to this conclusion I have had regard to all of the submissions which have been made on behalf of the applicant and the unions and then applied a “global” or “overall assessment” to determine whether the BOOT has been satisfied. Consistent with the orthodox approach I have had regard to the terms which are more beneficial to the employees; the terms which are less beneficial to the employees and then made an overall assessment about whether each class of employee under the Agreement would be that are off overall. I am satisfied that they will be.
[81] The Agreement is approved.
[82] The Australian Municipal, Administrative, Clerical and Services Union, United Voice, Together Queensland, The Australian Workers’ Union, The Australian Nursing and Midwifery Federation, The New South Wales Nurses and Midwives’ Association & New South Wales Branch of the Australian Nursing and Midwifery Federation, The Queensland Nurses’ Union of Employees and The Health Services Union of Australia, being bargaining representatives for the Agreement, have all given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers each of these organisations.
[83] In accordance with s 54 of the Act the Agreement will operate from 22 March 2016. The nominal expiry date of the Agreement is 21 March 2019.
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Annexure A
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