Toukley Medical Services Pty Ltd
[2012] FWA 4864
•18 JUNE 2012
[2012] FWA 4864 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Toukley Medical Services Pty Ltd
(AG2012/1260)
TOUKLEY MEDICAL SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2011
Health and welfare services | |
COMMISSIONER MCKENNA | SYDNEY, 18 JUNE 2012 |
Application for approval of the Toukley Medical Services Employees Enterprise Agreement 2011 - application dismissed.
[1] Toukley Medical Services Pty Ltd (“the applicant”) has made an application, pursuant to s.185 of the Fair Work Act 2009 (“the Act”), seeking the approval of a single-enterprise agreement titled the Toukley Medical Services Employees Enterprise Agreement 2011 (“the Agreement”). The application for the approval of the Agreement was accompanied by a number of conditional terminations.
[2] The Agreement is intended to cover 43 employees who are employed at the three medical practices operated by the applicant. The employer’s declaration identified as the reference instruments the Health Professionals and Support Services Award 2010 and the Nurses Award 2010, together with AN120385 Nurses, Other Than in Hospitals, &c (State) Awardand AN120664 Clerical and Administrative Employees (State) Award.
[3] Some 26 employees were bargaining representatives for the Agreement. The New South Wales Nurses’ Association/the Australian Nursing Federation NSW Branch (which I shall refer to collectively as “the union”) also had involvement in the bargaining. In the Declaration of Employee Organisation in relation to Application for Approval of Enterprise Agreement (“the Form F18”), the union identified a number of concerns in relation to nursing employees who would be covered by the Agreement, in the following terms:
- Clause 19A: 20% Saturday loading (50% in Nurses Award 2010)
- Clause 24: 4 weeks annual leave (5 weeks in Nurses Award 2010 - the leave buyout in Clause 16 results in a nil wage increase for nurses)
- Schedule A contains a 10% casual loading (well below the minimum transitional rates). ...”
“The [union] notes the following significant Better Off Overall Test issues:
[4] As a separate matter, the Form F18 noted the union’s “alarm” at a document that was attached to the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (“the Form F17”). In that document attached to the Form F17, which concerned notices in relation to the appointment of bargaining representatives, employees were required or expected on the document to indicate whether they were union members.
[5] When the matter was initially listed, the applicant and the union agreed to hold discussions to see if a resolution could be reached in relation to the union’s concerns about the better off overall test considerations concerning the nursing employee classifications in the Agreement. As the union was not a bargaining representative for the administrative employees, the union did not engage in any discussions or make any representations in the proceedings concerning the non-nursing employee classifications - although some matters, such as the casual loading arrangements, were common to both the nursing and administrative classifications. In the proceedings, the union elaborated some additional matters of concern about the Agreement apart from those it had originally broached in the Form F18.
[6] As a result of the discussions between the applicant and the union, the applicant proposed certain undertakings dated 23 May 2012. The applicant undertook to increase the casual loading and to apply the transitional redundancy scales for nursing employees as contained in cl.12.5 of the Nurses Award. Two other undertakings were given relating to deductions and public holidays. The union advised that it agreed with the undertakings that had been proposed by the applicant, but remained concerned about “other outstanding issues, significantly Saturday loadings” - being matters which were not otherwise addressed in the undertakings proposed by the applicant.
[7] At a listing of the matter on 24 May 2012, I canvassed a number of further matters about the Agreement, including aspects of the remuneration specified for the non-nursing classifications and a number of other matters. The applicant’s representative indicated he needed to seek further instructions in relation to certain matters and, to that end, I scheduled a further listing on 31 May 2012. I also directed the applicant and the union to confer about the appropriate transitional rates to be used in the calculations for the nursing employees, given that the applicant and the union and the applicant appeared to be relying on different rates.
[8] In emailed correspondence dated 28 May 2012, the applicant’s representative advised as follows:
“As a matter of courtesy and prior to the hearing scheduled for 4.00pm on Thursday 31 May 2012, I am instructed to advise that Toukley Medical Services Pty Ltd will not be presenting any further evidence nor giving any further undertakings in support of the Toukley Medical Services Employees Enterprise Agreement.
It is our view that we have negotiated with our employees over a long period of time and in good faith and that out employees are better off overall under this Enterprise Agreement.
We would be happy for Fair Work Australia to make a determination in this matter based on the information currently before it.”
[9] In the proceedings on 31 May 2012, the applicant’s submissions confirmed the advice that had been conveyed in the emailed correspondence dated 28 May 2012.
[10] For its part, apart from identifying its concerns about aspects of the Agreement, the union neither supported nor opposed the approval of the Agreement. The undertakings proposed by the applicant did not fully address the concerns of the union.
[11] Some, but not all, employee bargaining representatives participated in the proceedings. The submissions of the some of the employee bargaining representatives supported the approval of the Agreement; some others who participated chose not to make any submissions.
[12] Following the proceedings on 31 May 2012, arrangements were put in place to seek the views of the bargaining representatives as to the undertakings. No further communications were received in response to those arrangements by the date specified, namely 8 June 2012.
CONSIDERATION
[13] Among other matters, the Form F17 indicates that, out of a group of 43 employees who will be covered by the Agreement, 24 employees are part-time employees and 13 are casual employees. Most of the employees (a total of 37) are female, with 31 of the employees being aged over 45 years.
Part-time employment
[14] The Agreement provides as follows in relation to part-time employees who, as I have noted, comprise the majority of employees:
“11.2.1 A part-time employee is a person who:
(a) works less than full-time hours of thirty eight (38) per week; and
(b) has reasonably predictable hours of work; and
(c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
11.2.2 An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee shall be paid as a casual employee in accordance with sub-clause 11.3.
11.2.3 Regular part-time employees shall be paid per hour worked an amount equal to one thirty-eighth of the weekly wage appropriate to the employee’s classification.
...
11.2.7 A part-time employee will receive a minimum payment of three (3) hours for each engagement. ...”
[15] The Nurses Award, at cl.10.3(b), provides that before commencing part-time employment, the employer and the employee will agree in writing on the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours. Clause 10.3(c) provides that the terms of the part-time work agreement may be varied only by agreement recorded in writing.
[16] The Health Professionals and Support Services Award, at cl.10.3(b) provides that 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. Clause 10.3(c) provides that the terms of the part-time work agreement may be varied only by agreement recorded in writing.
[17] On a consideration of the part-time work provisions of the Agreement and the two modern awards, the part-time employees under the Agreement would not have the benefit of the significant industrial protections concerning the regularisation of settled part-time work arrangements, being arrangements which could be varied only by written agreement between the employer and employee under the awards.
[18] The part-time work arrangements under the Agreement also entail issues concerning overtime arrangements, as outlined later in the decision.
Casual employment
[19] The Agreement as lodged contained casual pay rates in Schedule A which were loaded by approximately ten per cent on the standard rates. That is, while cl.11.3.2 of the Agreement indicated that the casual loading was 25 per cent, the rates themselves as specified in dollar terms in Schedule A of the Agreement provided a loading of less than 25 per cent. The Agreement also provides at cl.11.3.4 for a minimum casual engagement of three hours.
[20] Following discussions with the union, the applicant determined to provide an undertaking the effect of which would be to increase all the casual rates from ten per cent to 25 per cent on the standard rates in the Agreement, notwithstanding the lower dollar amounts identified in Schedule A.
[21] The Health Professionals and Support Services Award provides at cl.10.4(a) that a casual employee is engaged to work up to and including “38 ordinary hours” per week. The Agreement does not provide any overtime rates for casual employees who work more than 38 ordinary hours a week. Indeed, the Agreement does not provide overtime payments for any classification of employees.
Saturday and Sunday work as ordinary hours
[22] Clause 19A.1 of the Agreement provides that where an employee is rostered to work ordinary hours between midnight on Friday and 2.00pm on Saturday, the employee will be paid a loading of 20 per cent of his or her ordinary rate of pay for the hours worked during this period. By virtue of cl.19A.2 of the Agreement ordinary hours between 2.00pm on Saturday and 7.00am on Monday attract a loading of 100 per cent.
[23] The submissions indicated that the medical practices operated by the applicant operate regularly on Saturdays. The submissions also indicated that the medical practices rarely operate on Sundays (for example, there had been one Sunday opening some months ago as a trial to see if it was worth opening the practices on Sundays). Presently, no nursing classifications work on Saturdays in the medical practices, but it is open to the applicant to roster nursing employees on Saturdays as is presently the case with the rostering of its administrative employees (the submissions indicated that Saturday work was performed only on a volunteer basis by administrative employees, but voluntarism is not reflected in the terms of the Agreement).
[24] Nursing employees: Clause 26.1 of the of the Nurses Award provides a loading of 50 per cent for ordinary hours between midnight on Friday and midnight on Saturday, while cl.26.2 provides a loading of 75 per cent for ordinary hours between midnight on Saturday and midnight on Sunday.
[25] Administrative employees: Clause 26.1 of the Health Professional and Support Services Award provides that for all ordinary hours worked between midnight on Friday and midnight on Sunday, a day worker will be paid an additional loading of 50 per cent.
[26] Further, cl.26.2 of the Health Professional and Support Services Award provides that a casual employee who works on a Saturday or Sunday will be paid a loading of 75 per cent for all time worked instead of the casual loading of 25 per cent.
Overtime arrangements
[27] The Agreement does not provide any payment for overtime worked by employees: cl.21.2. Instead, cl.20 of the Agreement provides only for time off in lieu of payment for overtime outside the ordinary hours of work as defined by cl.19 of the Agreement. Those ordinary hours in cl.19 in cl.19 of the Agreement are defined as follows:
“19 ORDINARY HOURS OF WORK
19.1 The hours for an ordinary weeks work for all employees is an average of 38 hours per week, worked over four (4) weeks in any arrangement of shifts as agreed between the employer and the employee.
19.2 The span of ordinary hours shall be from 7.00am to 8.00pm Monday to Friday.
19.3 The shift length or ordinary hours of work per day will be a maximum of ten (10) hours exclusive of meal breaks.” [My underlining]
[28] Under cl.20.1.2 of the Agreement, time in lieu of payment for overtime accrues on the basis of one and a half hours for each hour worked between 8.00pm and 11.00pm Monday to Friday and two hours for each hour worked between 11.00pm and 7.00am Monday to Friday. There does not appear to be any specification within the Agreement of the time in lieu arrangements for overtime worked outside the Monday to Friday-related overtime hours specified in cl.20.1.2. That is, the Agreement appears to be silent on both overtime and time off in lieu of payment overtime for work between 11.00pm on Friday and 7.00am on Monday.
[29] Nursing employees: The daily span of ordinary hours in the Agreement is one hour longer under the Agreement than the twelve hours under the Nurses Award (see cl.22.1, which specifies a span between 6.00am to 6.00pm). Moreover, cl.21.5 of the Nurses Award provides that the hours of work on any day must be continuous.
[30] As to full-time employees under the Nurses Award, cl.28.1 provides that hours worked in excess of the ordinary hours on any day or shift prescribed in cl.21, concerning ordinary hours of work, are to be paid as follows: Monday to Saturday inclusive, at the rate of time and one half for the first two hours and double time thereafter; double time on Sunday; and double time and one half for public holidays.
[31] As to part-time employees under the Nurses Award, cl.28.1(d) provides that all time worked by part-time employees in excess of the rostered ordinary full-time hours will be overtime and will be paid as prescribed in cl.28.1(a). Clause 28.2 of the Nurses Award provides that, by agreement between the employer and employee, an employee may take time off instead of receiving payment for overtime. Clause 28.2(b) provides that the employee may take one hour of time off for each hour of overtime plus a period of time equivalent to the overtime penalty incurred.
[32] Administrative employees: It appears that the applicant’s medical practices would be contemplated by cl.24.2 of the Health Professional and Support Services Award which provides that the ordinary hours of work for a day worker (in a private medical practice) will be between 7.30am and 9.00pm Monday to Friday and between 8.00am and 4.30pm on Saturday.
[33] For full-time employees, cl.28.1 of the Health Professional and Support Services Award provides that an employee who works outside his or her ordinary hours on any day will be paid at the rate of time and a half for the first two hours and double time thereafter, with double time for Sundays.
[34] For part-time employees, cl.28.1(d) of the Health Professional and Support Services Award provides that where agreement as to part-time working arrangements has been reached in accordance with cl.10.3(b) or cl.10.3(c), a part-time employee who is required by the employer to work in excess of those agreed hours must be paid overtime in accordance with arrangements in the award. Clause 28.3 of the Health Professional and Support Services Award provides that an employee may elect, with the consent of the employer, to take time off instead of payment for overtime taken on the ordinary time rate of an hour for each hour worked.
[35] Both the Nurses Award and the Health Professional and Support Services Award, at cl.28 respectively, deal with miscellaneous arrangements concerning rest periods after overtime, rests during overtime and recalls. There are no equivalent provisions in the Agreement.
Redundancy provisions
[36] Clause 15.3 of the Agreement specifies the scale of severance payments contained in the National Employment Standards. The Form F17 identifies the two NAPSAs as reference instruments. That being the case, the transitional provisions for NAPSA employees arise in relation to certain employees who would be subject to the Agreement. In cl.12.5 of each of the modern awards, the following arrangements apply:
“12.5 Transitional provisions - NAPSA employees
(a) Subject to clause 12.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a notional agreement preserving a State award:
(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement-based transitional instrument or enterprise agreement had applied to the employee; and
(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.
(b) The employee’s entitlement to redundancy pay under the notional agreement preserving a State award is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.
(c) This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.
(d) Clause 12.5 ceases to operate on 31 December 2014.”
[37] The redundancy arrangements contained in AN120380 Nurses (Private Sector) Redundancy (State) Award (which relevantly applied to employees under the Nurses, Other Than in Hospitals, &c (State) Award)and the Clerical and Administrative Employees (State) Award reflect the standard formulation in many, if not most, awards that formerly had been made by the Industrial Relations Commission of New South Wales, that is:
“(1) If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:
Years of Service | Entitlement |
Less than 1 year | Nil |
1 year and less than 2 years | 4 weeks |
2 years and less than 3 years | 7 weeks |
3 years and less than 4 years | 10 weeks |
4 years and less than 5 years | 12 weeks |
5 years and less than 6 years | 14 weeks |
6 years and over | 16 weeks |
(2) Where an employee is 45 years old or over, the entitlement shall be in accordance with the following scale:
Years of Service | Entitlement |
Less than 1 year | Nil |
1 year and less than 2 years | 5 weeks |
2 years and less than 3 years | 8.75 weeks |
3 years and less than 4 years | 12.5 weeks |
4 years and less than 5 years | 15 weeks |
5 years and less than 6 years | 17.5 weeks |
6 years and over | 20 weeks |
(3) ‘Weeks pay’ means the all purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments, shift penalties and all purpose allowances paid in accordance with this award.”
[38] Following discussions with the union, the applicant provided undertaking having the effect of applying the transitional redundancy arrangements for the nursing classifications. I separately raised in the proceedings that the transitional redundancy arrangements applied also to administrative classifications of employees.
[39] While the applicant was prepared to provide undertakings as to the redundancy entitlements for the nursing classifications, it declined, for reasons that are unclear given the advice that no further submissions would be made, to provide any equivalent undertakings concerning the administrative employees.
Annual leave - nurse classifications
[40] Clause 24 of the Agreement provides a standard of four weeks’ annual leave for all employees, which is what would apply to the administrative employees irrespective of whether their employment was subject to Agreement or the Health Professionals and Support Services Award/National Employment Standards.
[41] The Nurses Award, in contrast, provides that in addition to the annual leave entitlements in the National Employment Standards, a nurse is entitled to an additional week of annual leave on the same terms and conditions. That is, cl.31.1(c) of the Nurses Award provides as follows:
“31.1 Quantum of annual leave
...
(c) To avoid doubt, this means that an employee who is not a shiftworker for the purposes of clause 31.1(b) above is entitled to five weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 31.1(b) is entitled to six weeks of paid annual leave for each year of service with their employer.”
[42] The union contended that the result of cl.24 of the Agreement in providing four weeks’ annual leave, rather than the five weeks in Nurses Award, combined with the “buy out” (of 1.92 per cent) described in cl.16.2 of the Agreement means there will be a “nil wage increase for nurses” at each year of the Agreement, where the Agreement provides for annual pay increases of two per cent. The applicant submitted the employees were happy with this arrangement and, further, that some employees are paid in excess of the amounts otherwise specified. More generally, the union submitted it was concerned that the Agreement falls below award minima in a number of respects and the wages rates for nurses are not sufficient to cover that as against the transitional rates. The union filed certain calculations which, the union submitted, “speak for themselves” as to nurses falling below the award minima in relation to certain work patterns. The applicant did not advance any submissions or materials to dispute the union’s calculations in this respect; the applicant agreed with the calculations.
Annual leave loading - nurse and administrative classifications
[43] The Agreement does not provide an annual leave loading, whereas the Nurses Award and the Health Professionals and Support Services Award provide, in short, for an annual leave loading of 17.5 per cent of the ordinary rate of pay or the weekend and shift penalties the employee would have received had the employee not been on leave during the relevant period.
Allowances
[44] Part 7 of the Agreement specifies two allowances, namely a travel allowance of 74 cents per kilometre for the use of a personal vehicle (cl.33.1) and an in-charge allowance of three per cent of the ordinary rate of pay where an employee completes four consecutive days of higher duties (33.2). There is no provision for the adjustment of the travel allowance.
[45] The Agreement also provides at cl.34 that the applicant will provide employees with specified items to be worn as uniforms. The uniforms are laundered and maintained at the employees’ cost.
[46] Nursing employees: Clause 16.2(b) of the Nurses Award provides that where employees’ uniforms are not laundered by or at the expense of the employer, the employee will be paid a laundry allowance of 32 cents per shift or part thereof on duty or $1.49 per week, whichever is the lesser amount.
[47] Clause 16.3 of the Nurses Award specifies certain arrangements concerning the provision of a meal or the payment of a meal allowance, such as a payment of $11.06 when required to work after the usual finishing hour of work beyond one hour, provided that where overtime work exceeds four hours a further meal allowance of $9.96 will be paid.
[48] Clause 16.4 of the Nurses Award specifies certain arrangements concerning an on-call allowance.
[49] Clause 30 of the Nurses Award provides that if a nurse relieves in a higher graded position for three or more days, the employee will be paid at the higher classification rate.
[50] Administrative employees: Clause 18.3 of the Health Professionals and Support Services Award provides that where employees’ uniforms are not laundered by or at the expense of the employer, the employee will be paid a laundry allowance of 32 cents per shift or part thereof on duty or $1.49 per week, whichever is the lesser amount.
[51] Clause 18.7 of the Health Professionals and Support Services Award specifies certain arrangements concerning the provision of a meal or the payment of a meal allowance, such as a payment of $11.06 when required to work after the usual finishing hour of work beyond one hour, provided that where overtime work exceeds four hours a further meal allowance of $9.96 will be paid.
[52] Clause 18.10 of the Health Professionals and Support Services Award specifies certain arrangements concerning an on-call allowance. Clause 18.11 of the award also specifies certain telephone allowance arrangements.
Miscellaneous
[53] I inquired of the applicant’s representative as to the source of the long service leave arrangements in cl.27 of the Agreement, as the derivation was unclear. It would appear that, at least for those employees whose long service leave entitlements were not derived from the individual instruments which were the subject of the conditional terminations which accompanied the application for the approval of the Agreement, the Long Service Leave Act 1955 (NSW) would operate as non-excluded legislation notwithstanding the terms of the Agreement: Armacell Australia Pty Ltd [2010] FWAFB 9985. The applicant’s representative submitted that, subject to taking further instructions, he understood that the provisions were drawn from the NAPSAs (but that does not appear to be the case). In the absence of further submissions from the applicant in response to my queries in this respect, the long service leave matter is unresolved (but this issue would not otherwise impede approval).
CONCLUSION
[54] The Agreement provides base pay rates higher than those contained in the Nurses Award and the Health Professionals and Support Services Award. Notwithstanding those higher base rates, I have not been satisfied the Agreement passes the better off overall test. In particular, the lack of any overtime payments is problematic in terms of the better off overall test, in circumstances where the awards provide that an employee has a presumptive entitlement to money payment for the relevant overtime worked. The arrangements concerning time in lieu under the awards comprise an agreed, optional arrangement. Under the Agreement, in contrast, there is no element of mutuality concerning time in lieu of payment for overtime; it is the only arrangement to compensate for overtime worked.
[55] The percentage rates for employees working on Saturdays are lower under the Agreement than under the operation of the Health Professionals and Support Services Award and the Nurses Award, and higher on Sundays. I do not accept the applicant’s proposition that there effectively would be a levelling-out of the Saturday and Sunday rates in circumstances where the medical practices open only infrequently on Sundays.
[56] Further, I do not accept that the increase in the base rates in the Agreement compared to the awards is enough to compensate for the lower rates on Saturdays and for the loss of other payments that would otherwise apply.
[57] The applicant has provided undertakings which would have the effect of lifting the specified dollar amounts in the Agreement from about 10 per cent on the base rates to 25 per cent with respect to casual employees. Although I raised the issue of the Saturday casual loading of 75 per cent for the administrative employees under the Health Professionals and Support Services Award, the applicant’s representative advised that no further submissions or undertakings (on this matter, as well as other matters) would be provided by the applicant.
[58] The applicant has been prepared to provide undertakings for the nursing classifications in relation to transitional redundancy pay arrangements, but has declined to provide parallel undertakings concerning the administrative employees.
[59] Among the other principal concerns, the part-time employees under the Agreement would not have the significant industrial protections as contained the Nurses Award and Health Professionals and Support Services Award.
[60] As to the nursing employees, there is also the loss of the additional week of annual leave. For each of the two groupings of employees, the absence of an annual leave loading payment and miscellaneous other award-specified payments of the types identified earlier in the decision also arise in relation to the better off overall test.
[61] The applicant submitted, in particular, that the base rates were higher than the awards and the employees would not be disadvantaged by the inferior arrangements under the Agreement concerning matters such as overtime rates and Saturday rates. That is, the applicant submitted the employees were pleased to work additional hours and thereby to have the opportunity to earn additional money under the rates as specified in the Agreement and/or to have the time off in lieu of payment for overtime to accommodate their personal exigencies. I think that the decision of the Full Bench in Bupa Care Services Pty Ltd [2010] FWAFB 2762is apposite with respect to this submission.
[62] The applicant also submitted that if payment to the employees were be made under the arrangements equivalent to those in the awards, it would not be economically viable to operate the medical practices on Saturdays. In this regard, nothing was advanced to indicate there would be any exceptional circumstances to support a conclusion the Agreement should be approved where, in my assessment, it does not pass the better off overall test. The applicant also submitted that if employees had to be paid overtime the applicant would not let them work overtime. The applicant did not contend the Agreement should be approved for reasons of exceptional circumstances; rather, the applicant contended the employees would be better off overall under the Agreement, although I have not been satisfied this would be the case.
[63] One of the difficulties concerning the applicant’s contention that the Agreement passes the better off overall test is that it determined, as is its prerogative, not to make any further submissions in relation to certain matters raised by the union as to the nursing classifications and by me as to the administrative classifications. The applicant also determined not to provide any further undertakings - for example, so as even to regularise on an equal footing the transitional redundancy arrangements applicable as between the two groupings of nursing employees and administrative employees who would be covered by the Agreement.
[64] In conclusion, while the base rates in the Agreement are higher than those in the awards (and an undertaking has been provided to increase the casual rates) a number of features including, but not limited to, the overtime arrangements, the Saturday payment arrangements, the part-time work arrangements, the annual leave for nurses and annual leave loadings, and various other payments, lead me to the view that the Agreement does not pass the better off overall test. That is, I am not satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the Nurses Award and the Health Professionals and Support Services Award applied.
[65] The application for the approval of the Agreement is dismissed.
COMMISSIONER
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Appearances:
S Sillato for Toukley Medical Services Pty Ltd.
L McDonald for the New South Wales Nurses’ Association/Australian Nursing Federation NSW Branch.
D Barrett, employee bargaining representative.
L Stever, employee bargaining representative.
J Fordham, employee bargaining representative.
S Nancarrow, employee bargaining representative.
N Carroll, employee bargaining representative.
R Smith, employee bargaining representative.
L Hutchinson, employee bargaining representative.
K Moylan, employee bargaining representative.
H Heath, employee bargaining representative.
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