Sandy Ridge House Inc, operating as Ronald McDonald House Monash
[2010] FWA 242
•19 JANUARY 2010
[2010] FWA 242 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/20230)
Liquor and accommodation industry | |
COMMISSIONER MCKENNA | SYDNEY, 19 JANUARY 2010 |
Ronald McDonald House Monash Enterprise Agreement [2009].
[1] Sandy Ridge House Inc operating as Ronald McDonald House Monash (“the applicant”) has made an application for the approval of a single-enterprise agreement titled Ronald McDonald House Monash Enterprise Agreement 2009. On reading the application, it appeared to me that aspects of the agreement were, potentially at least, problematic.
[2] The matter was mentioned on 13 January 2010, and I sought clarification concerning certain aspects of the application. Ms E McKie of Employment Relations Strategies appeared on behalf of the applicant. I was assisted in my consideration of the application for approval by the submissions of Ms McKie; various matters were clarified to my satisfaction. There were, however, at least two remaining matters of significance which, in my opinion, militate against the approval of the enterprise agreement.
[3] The first matter of concern involves the provisions concerning hours and additional hours. The reference instrument nominated in the application is the Motels, Accommodation and Resorts Award – AP787952CRV. It provides as follows in relation to hours:
23. HOURS OF WORK
23.1 The hours of work of a full-time employee are an average of 38 hours per week.
23.1.1 The average of 38 hours per week is to be worked in one of the following ways:
23.1.1(a) a nineteen day month, of eight hours each day;
23.1.1(b) four days at eight hours and one of six hours;
23.1.1(c) four days at nine and a half hours per day;
23.1.1(d) five days of seven hours and 36 minutes per day;
23.1.1(e) 152 hours per each four week period; or
23.1.2(f) 160 hours per each four week period, with a day banked per period up to a maximum of five.
23.1.2(g) any combination of the above.
23.2 The arrangement for working the average of 38 hours per week is to be agreed between the employer and the employee from the alternatives in 23.1.
23.3 The agreed hours of work arrangement must meet the following conditions:
23.3.1 A minimum of six hours and a maximum of eleven and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals.
23.3.2 An employee cannot be rostered to work for more than ten hours per day on more than three consecutive days without a break of at least 48 hours.
23.3.3 No more than eight days of more than ten hours may be worked in a four week period.
23.3.4 An employee shall be entitled to eight full days off per four week period; and
23.3.5 No employee shall work more than ten days in succession without a rostered day off.
23.4 Broken shifts - spread of hours
Where broken shifts are worked the spread of hours can be no greater than twelve hours per day,
…
[4] The agreement contains various references to ordinary hours comprising a notional 38 hours a week for full-time hours. As to that, under the agreement, ordinary hours can be worked any hour of the day and any day of the week. Payment for additional hours requires approval in advance for all hours worked greater than the average of 38 hours. However, unlike the reference instrument, there is no specification in the agreement as to what would be, for example, regarded as the maximum ordinary hours on any given shift worked by an employee - even though the agreement otherwise provides, without further elucidation, that “overtime performed on any day shall stand alone”. Similarly, there is no provision in the agreement which satisfactorily specifies what would be, for example, a reasonable averaging period giving rise to entitlements to the loaded rates for additional hours, albeit there is reference to an otherwise undefined “roster period”. As to rostering itself, the agreement states, in part: “given the nature of our business, you may be rostered to work as and when/where required”. Moreover, the agreement provides that an employee is entitled to be paid only ordinary rates when, for example, attending a work-related meeting, even though such attendance would be beyond the ordinary hours of work. Given the terms of the agreement, it is difficult to ascertain an employee’s discernible or enforceable agreement-specific entitlement to payment for additional hours, such is the lack of specificity as to when entitlement to such payments might otherwise arise.
[5] Having regard to the various provisions concerning hours and additional hours in the agreement and the reference instrument, read in their entirety, I cannot be satisfied the agreement satisfies the no disadvantage test.
[6] Second, the agreement contains a provision in the following terms concerning volunteering:
6.11 Volunteering
(a) You may decide to perform unpaid work as a volunteer with the organisation from time to time. A volunteer is defined as someone who willingly gives unpaid help in the form of time, with service or skills through an organisation such as ours.
(b) When you are acting in this capacity you will be required to provide written confirmation of your election to participate as a volunteer and that for the period of so doing will not be classified as an employee for the purposes of this agreement.
(c) For the avoidance of doubt, you will be required to seek approval of the Executive Officer for payment of additional hours and acknowledge that the performance of work outside your rostered hours without prior authorisation by the Executive Officer of their designate, will be deemed to be volunteering.
(d) When volunteering, an employee cannot be directed to work duties that are within their ordinary job function or classification.
(e) Where you are directed to work by us, you will be paid in accordance with your classification, provided that the direction required you to perform your ordinary duties.
[7] Ms McKie explained that much of the good work of Ronald McDonald House (providing accommodation for families of ill children) is undertaken by unpaid volunteers who are not employees of the applicant. She submitted employees similarly may perform unpaid work for the facility beyond ordinary hours for, for example, altruistic reasons – and cl.6.11 would operate so as to delineate employment from volunteering. She further submitted that one of the purposes of the provision was, in effect, to operate as an overtime management tool. That is, cl.6.11 would have an effect of guarding against claims for payment of unauthorised additional hours when the employee attended work or remained at work without prior approval for additional hours.
[8] Even accepting these submissions as part of the rationale, the clause seems to me to be problematic. As cast, cl.6.11 of the agreement goes much further than providing a form of an overtime management commonly found in many industrial instruments, whereby, for example, an entitlement to claim payment does not arise unless additional hours have been pre-approved. Clause 11 purports, in effect, to displace entirely the subsisting employment relationship for the purposes of the agreement, and to re-badge an employee as a non-employee volunteer for the period of time in question. Curiously, the agreement then purports to regulate matters as between the applicant and the rebadged, non-employee volunteers - in as much as it limits the type of work that could be the subject of direction in cl.6.11(d) in relation to activities supposedly outside an employment relationship, albeit one supposes that a true volunteer might expect direction from the person coordinating volunteers’ activities.
[9] I doubt this purported conversion in status from an employee to a non-employee volunteer properly could be effected in the manner contemplated in cl.6.11 of the agreement, if at all. If, however, the conversion is effective during the relevant period of time, every single right and obligation otherwise arising under the agreement as between an employee and employer would be displaced by the operation of cl.6.11 – even in cases where there had been some mere inadvertence in failing to obtain pre-approval of hours that otherwise may well have received post-approval, given the operation of the deeming provision in cl.6.11(d). These aspects of the application must also be viewed as failing the no disadvantage test, given the purported voiding, by operation of the cl.6.11 of the agreement, of every single entitlement that otherwise would have applied as between the applicant and an employee.
[10] I sought clarification concerning other aspects of the agreement, such as the provisions concerning unilateral deductions from wages in circumstances where there had been some form of (alleged) overpayment, and such deductions were not otherwise authorised by the individual employee in accordance with an enterprise agreement (in a way potentially contrary to s324(1)(b) of the Fair Work Act2009, which seems to presuppose that deductions pursuant to a provision of an enterprise agreement still need to be authorised by the employee). While there are some miscellaneous issues of concern about various aspects of the agreement, it seems to me that the two principal issues in relation to hours generally and the clause concerning volunteering are, without anything more, sufficient to decline to approve the agreement.
[11] I decline to approve the agreement.
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