United Voice and others

[2013] FWC 5696

[2013] FWC 5696 [Note: Appeals pursuant to s.604 (C2013/6015) was lodged against this decision - refer to Full Bench decision dated 13 September 2013 [[2014] FWCFB 129] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

United Voice and others
(AM2012/34, AM2012/70, AM2012/272, AM2012/278, AM2012/289)

Aged care industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 AUGUST 2013

Modern Awards Review 2012 - Variation to the Aged Care Award 2010.

[1] The Fair Work Commission (the Commission) (previously Fair Work Australia) is required by the Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (the Transitional Act) to conduct a review of all modern awards, other than modern enterprise awards or State Reference Public Sector Awards, as soon as practicable after 1 January 2012 (the 2012 Review).

[2] Five applications were made to vary the Aged Care Award 2010 1(the Award):

AM2012/34 - application by United Voice (UV);

AM2012/70 - application by Aged and Community Services Association of NSW & ACT Inc and others (ACS);

AM2012/272 - application FKP Limited;

AM2012/278 - application by Philip Gray; and

AM2012/289 - application by Clare Dewan & Associates.

[3] Submissions were made by the parties in support of their application and in opposition to other applications. In addition, the Health Services Union (HSU), the Australian Nursing Federation (ANF), the Australian Federation of Employers and Industries (AFEI), Australian Business Industrial (ABI) and Business SA made submissions in support of or opposition to some of the applications.

[4] This decision determines each of the variations sought, other than variations which are being dealt with by Full Benches constituted to deal with particular matters in the 2012 Review.

Legislative provisions applicable to the 2012 Review

[5] The transitional review is being conducted under Item 6 of Schedule 5 to the Transitional Provisions Act. Item 6 provides:

“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.
(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”

[6] The legislative provisions applicable to the transitional review were considered in a decision relating to the Modern Awards Review 2012 given on 29 June 2012. 2 In that decision, the Full Bench dealt with various preliminary issues relating to the approach to be adopted in the review. In particular, and for the purposes of the present matters, I note and adopt the following conclusions in that decision:

“[23] First, any variation of a modern award must comply with the requirements of the FW Act which relate to the content of modern awards. These requirements are set out in Subdivision A of Division 3 of Part 2-3 of the FW Act...
[25] Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards (ss.136–155 of the FW Act) ...
[83] As to the historical context the award modernisation process was conducted by the AIRC under Part 10A of the former WR Act. The process took place in the period from April 2008 to December 2009 and was conducted in accordance with a written request (the award modernisation request) made by the Minister for Employment and Workplace Relations to the President of the AIRC. The award modernisation process was completed in four stages, each stage focussing on different industries and occupations. All stakeholders and interested parties were invited to make submissions on what should be included in modern awards for a particular industry or occupation. Separate processes, including variously, the provision of submissions, hearings and release of draft awards, were undertaken in respect of the creation of each modern award to ensure parties were able to make submissions and raise matters of concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than 1500 state and federal awards and created 122 industry and occupation based modern awards.
[84] ... The award modernisation process required by Part 10A of the WR Act has been completed.
[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136 ...
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome ...
[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold” for the making of variation determinations in the Review, as proposed by the Australian Government and others.
[100] The adoption of expressions such as a “high threshold” or “a heavy onus” do not assist to illuminate the Review process. In the Review we must review each modern award in its own right and give consideration to the matters set out in subitem 6(2). In considering those matters we will deal with the submissions and evidence on their merits, subject to the constraints identified in paragraph [99] above.”

[7] The modern awards objective, which is significant within the 2012 Review, is as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of FWC’s modern award powers, which are:

(a) FWC’s functions or powers under this Part; and

(b) FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: FWC must also take into account the objects of this Act and any other applicable provisions. For example, if FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

Variation 1

[8] ACS seek to vary clause 10.3(c) to add the words set out in bold, as follows:

“(c) Any variation to the hours of work will be:

(i) agreed in writing; or

(ii) made in accordance with clause 22.6 - Rosters.”

[9] Currently part-time employees hours of work are determined by clause 10.3 which provides as follows:

“10.3 Part-time employees

(a) A part-time employee is an employee who is engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work.

(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.

(d) The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.

(e) Payment in respect of personal/carer’s leave (where an employee has accumulated an entitlement) for a part-time employee will be on a pro rata basis made according to the number of ordinary hours the employee would have worked on the day or days on which the leave was taken.”

[10] Clause 22.6 provides for rosters as follows:

“22.6 Rosters

(a) The ordinary hours of work for each employee will be displayed on a roster in a place conveniently accessible to employees. Such roster will be displayed at least two weeks prior to the commencing date of the first working period in any roster subject to clause 22.6(b) below.

(b) It is not obligatory for the employer to display any roster of the ordinary hours of work of casual or relieving staff.

(c) Seven days’ notice will be given of a change in a roster. However, a roster may be altered at any time to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness or in an emergency.

(d) This clause will not apply where the only change to the roster of a part-time employee is the mutually agreed addition of extra hours to be worked such that the part-time employee still has two rostered days off in that week or four rostered days off in that fortnight, as the case may be.

(e) Where practicable, ADOs will be displayed on the roster.

(f) This clause will not apply to hostel supervisors.”

[11] ACS relies upon the evidence of Mr Richard LeQuesne, 3 who is the Principal Consultant with EMA Consulting, who submitted that there was uncertainty about how clause 22.6(c) interacts with clause 10.3(c).4

[12] Mr Geoffrey Liggins, the Manager of Employee Relations for ACS, also gave evidence 5 about uncertainty amongst his members about the interaction between these clauses. Further, Mr Liggins gave evidence that it was important that employers are able to change employee’s rostered days and starting and finishing times.6

[13] This application is supported by ABI 7.

[14] The application is opposed by UV. UV submitted that the variation proposed by ACS was considered and rejected by the award modernisation Full Bench. The HSU and the ANF also opposed the application.

[15] ACS submitted that the award modernisation Full Bench did not address the issue of the interrelationship between clause 10.3 and clause 22.6(c). It was submitted that the award modernisation Full Bench intended clause 22.6(c) to apply to part-time employees. 8

[16] I do not accept the submissions of ACS that there is uncertainty about the interaction between clause 10.3(c) and clause 22.6(c).

[17] Clause 22.6(c) permits the employer to change an employee’s roster. It expressly permits a change with either seven days notice or no notice in certain circumstances. If a full time employee’s roster is changed so that he or she work hours in addition to the employee’s ordinary hours of work the employees is paid overtime. The same rule applies to part-time employees. If a part-time employee’s rostered hours of work are altered by a change to the roster and the part-time employee is required to work outside of his or her agreed hours of work the part-time employee is entitled to be paid overtime.

[18] It is clear that submissions were put to the award modernisation Full Bench that primacy should be given to clause 22.6. It is also clear that these submissions were not accepted by the award modernisation Full Bench. 9

[19] The issue of hours of work for part time employees was specifically dealt with by the award modernisation Full Bench when reviewing the health sector awards.

[20] When making the awards, the award modernisation Full Bench 10 understood that it was the practice in many health facilities that part-time employees agreed to work additional hours at ordinary time. Whilst the award modernisation Full Bench expressed some reservations about this practice, the Minister’s consolidated request11 made it clear that modern awards should not operate to discourage employers from offering additional hours to part-time employees. While ensuring the Award complied with the consolidated request, the award modernisation Full Bench maintained certain protections for part-time employees.

[21] The Award provides part-time employees with certainty of hours but provides that part-time employees can agree to work additional hours without the payment of overtime. However if part-time employees are directed to work outside of their agreed hours then they are paid overtime. This proposal would see their hours varied without their agreement. It would make the protections provided by clause 10 otiose.

[22] I am not persuaded to make the variations sought concerning part-time employees hours of work. The provisions in the Award are not unique and appear in many modern awards.

[23] There was insufficient evidence presented to support of the variation. I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 2

[24] ACS propose varying clause 15.4 to include the word “overtime” after the word “work” in clause 15.4(a)(i) as follows:

15.4 Meal allowance

(a) An employee will be supplied with an adequate meal where an employer has adequate cooking and dining facilities or be paid a meal allowance of $11.06 in addition to any overtime payment as follows:

(i) when required to work overtime after the usual finishing hour of work beyond one hour or, in the case of shiftworkers, when the overtime work on any shift exceeds one hour.

(ii) Provided that where such overtime work exceeds four hours a further meal allowance of $9.96 will be paid.

(b) Clause 15.4(a) will not apply when an employee could reasonably return home for a meal within the meal break.

(c) On request meal allowance will be paid on the same day as overtime is worked.

[25] Mr Liggins 12 and Mr LeQuesne13 gave evidence that they were asked whether this allowance is paid when an employee works overtime or whether it applies when additional hours are worked that are not overtime.

[26] ACS referred to the decision 14 of Vice President Watson in the review of the Nurses Award 201015 in which he said as follows:

“[17] The Aged Care Employers seek to vary clause 16.3(a)(i) by inserting the word “overtime” to confirm that meal allowance is paid when overtime is worked. The clause currently states:

“16.3 Meal allowances

(a) An employee will be supplied with an adequate meal where an employer has adequate cooking and dining facilities or be paid a meal allowance of $11.37 in addition to any overtime payment as follows:

(i) when required to work after the usual finishing hour of work beyond one hour or, in the case of shiftworkers, when the overtime work on any shift exceeds one hour.

(ii) provided that where such overtime work exceeds four hours a further meal allowance of $10.24 will be paid.

(b) Clause 16.3(a) will not apply when an employee could reasonably return home for a meal within the meal break.

(c) On request the meal allowance will be paid on the same day as overtime is worked.”

[18] The ANF opposes the variation. It submitted that the clause is not ambiguous and justifiably applies to part time nurses who work longer than their nominated hours, even if the additional hours are not paid at overtime rates.

[19] The clause is clearly subject to different interpretations, specifically in relation to part time employees who work additional hours that are not overtime. In my view meal allowances in awards are typically an incidence of working overtime and are often provided for in overtime clauses.”

[27] UV, the HSU and the ANF oppose this variation.

[28] ABI support the application, as does Business SA, as they submit it will make the provision clear.

[29] I do not accept that the provision is subject to different interpretations. The decision of Vice President Watson related to the Nurses Award 2010 which has different provisions for part-time employees compared to the Award. If a part-time employee under the Award works past his or her usual finishing time he or she is entitled to be paid overtime unless the part-time employee has agreed to vary their hours of work in accordance with clause 10.3 in which case his or her usual finishing time is varied. In that situation, the part time employee will only be paid overtime if his or her hours of work exceeds 38 hours per week or 10 hours per shift. Therefore there is no confusion. When a part-time employee works past his or her usual finishing time, she or he is paid overtime and is entitled to the allowance.

[30] I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 3

[31] ACS seek to vary clause 28.2 to define “regularly rostered.” Clause 28.2 currently provides annual leave for shift workers as follows:

“28.2 Quantum of annual leave

(a) For the purposes of the NES a shiftworker is defined as:

(i) an employee who is regularly rostered to work their ordinary hours outside the ordinary hours of work as a day worker as defined in clause 22.2(a); and/or

(ii) an employee who works for more than four ordinary hours on 10 or more weekends.

(b) For the purpose of the clause 28.2(a), a weekend means work in ordinary time on a Saturday and/or a Sunday in any one calendar week.

. . .”

[32] The proposed variation is as follows:

“(i) For the purpose of clause 28.2(a)(i) “regularly rostered” means:

(a) rostered to work 34 or more calendar weeks in a year of employment where any shift in a week is outside of the ordinary hours of work of a day worker; or

(b) if less than a year is worked 65 percent or more of calendar weeks worked where any shift in a week is outside of ordinary hours of work of a day worker.

(ii) For the purposes of clause 28.2(a)(ii), a weekend means work in ordinary time on a Saturday and/or a Sunday in any one calendar week.”

[33] Mr Liggins 16 and Mr LeQuesne17 gave evidence that there was uncertainty about what regularly rostered meant.

[34] UV, the HSU and the ANF opposed the application.

[35] The AFEI opposed the variation as it submitted employees who work 34 shifts a year would be entitled to the additional weeks leave.

[36] Apart from a reference to some phone calls from members to ACS seeking advice about the clause, there was no evidence that ACS was not able to provide advice about the application of the clause. Nor is there any evidence of any disputation about the operation of this clause.

[37] Further, the Fair Work Act 2009 itself uses the term “regularly rostered” at section 87(3) where it provides that in certain circumstances non-award employees regularly rostered to work shifts, which are continuously rostered 24 hours a day for 7 days a week, are entitled to an additional week’s annual leave.

[38] There is insufficient evidence before the Commission to support the variation proposed by ACS.

Variation 4

[39] Clare Dewan & Associates wants to delete clause 28.2 and replace it with the following:

“28.2 Quantum of annual leave

(a) For the purpose of the NES a shiftworker is defined as:

(i) an employee who is regularly rostered over seven days of the week; and

(ii) who works for more than four ordinary hours on ten or more weekends.

(b) for the purpose of clause 28.2(a) a weekend means work in ordinary time on a Saturday and/or Sunday in any one calendar week.”

[40] No evidence was called to support this variation.

[41] It was submitted that the current provision provides employees, who previously did not have an entitlement to the additional week’s annual leave, to additional annual leave. The application referred to the Health and Allied Services (Private Sector – Victoria) Consolidated Award 1998 which provided that an employee qualified for an additional week’s annual leave if the employee worked more than four hours on 10 weekends of the year. The application also contrasted the provision in the Nurses Award 2010 which it was submitted “more accurately reflects the appropriate entitlement which has historically applied.” It was submitted that similar provisions have been included in enterprise agreements covering aged care employees in Victoria. It was submitted that, in view of the decision of Commissioner Hampton 18, “potentially all of those agreements may have been invalidly approved by FWA and may be null and void”.

[42] At the hearing of this matter, it was suggested that the provision in the Award has increased cost for employers in Victoria. 19

[43] It was further submitted that an examination of the awards, that the award modernisation Full Bench took into consideration, show that those awards did not provide employees with an additional week’s annual leave in the circumstances set out in the Award. 20

[44] ABI submitted that there was some credence to the issue that has been raised. 21 No other party expressed any support for this variation.

[45] The HSU submitted that this application was lodged out of time and should be dismissed. The ANF opposed the application. It was submitted that the list provided by the applicant included awards that applied to nurses and nurses are not covered by the Award and therefore the clauses are irrelevant. It was submitted that there was no evidence that the clause had led to a massive change in those who were entitled to the additional week’s leave. 22

[46] Further it was submitted that even if it were accepted that some employees are entitled to an additional week’s leave when previously they were not, this was part and parcel of the swings and roundabouts of the award modernisation process.

[47] It was submitted that it is not a relevant consideration that the parties may have included in their agreements provisions which are inconsistent with the National Employment Standards. It was submitted that even if this was the case, it does not follow that the Award is not meeting the modern award objective and/or is not operating effectively without anomalies or technical problems arising from the award modernisation process. 23

[48] Little evidence was provided to support the contentions that there had been any increased entitlement to annual leave compared to the predecessor awards.

[49] I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 5

[50] UV seek to amend clause 24.1(a) to include a sentence at the end of the paragraph as follows:

24.1 Meal breaks

(a) Each employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes duration, to be taken at a mutually agreed time after commencing work. The break must be given no earlier than one hour after starting work and no later than five and a half hours after starting work.

[51] Mr Nathan Thompson, an Enterprise Agreements Industrial Officer with UV gave evidence. 24 He had previously worked in the UV Members’ Rights Centre which took telephone enquiries from UV members. It was his evidence that members’ meal breaks were being scheduled more than five and a half hours after commencing work. Further some members were advised that the interaction of clauses 24.1(a) and (b) meant that the employer is not required to roster employees for a break and hence employers are avoiding paying overtime under clause 24.1(b).25

[52] UV submitted that there is confusion amongst employers about the meal break entitlement and that some employers suggest that unless there is mutual agreement, this clause has no work to do.

[53] HSU supports the variation.

[54] AFEI opposes the variation submitting that clause is not ambiguous and that the issue was considered by the award modernisation Full Bench and there are no cogent reasons to vary the Award. Similarly ACS submits that there is no evidence before the Commission to support such a variation.

[55] ABI submitted that this matter had been agitated before the award modernisation Full Bench in that the HSU and ACIEA had submitted a clause which ensured that no one could work more than 6 hours without taking a meal break. The ABI submitted that this was not an anomaly as similar provisions exist in a number of other health awards. ABI also submitted that there was no evidence that the provision was not understood.

[56] Apart from a reference to some phone calls from members to UV seeking advice about the clause there was no evidence that UV was not able to provide advice about the application of the clause. Nor is there any evidence of any disputation about the operation of this clause.

[57] In circumstances where limited evidence was put before the Commission to support the variation, I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 6

[58] UV seek to:

(1) vary clause 3.1 to add in alphabetical order the following:

Lifestyle/diversion therapy means the provision of diversional, leisure, lifestyle and/or recreational activities to individuals and/or to groups of clients.

In-service experience means service with any employer which includes the same or similar functions to those performed by the employee. Relevant service does not include service which preceded a break of three years or more during which no relevant service was performed.

(2) to add the following dot point to B.4 in Schedule B:

● In the case of a personal care worker, this is the entry level for employees who hold a relevant Certificate III qualification but have no relevant in-service experience. This is also the level for personal care workers who do not hold relevant Certificate III Qualifications, but who have minimum of 12 months in-service experience.

(3) to add the following dot point to B.5 in Schedule B:

● In the case of personal care workers, employees at this Level will hold a relevant Certificate III qualification and have at least 560 hours in-service experience. They will also have sufficient knowledge and experience to give relevant advice and /or information to the employer and/or clients in relation to the specific areas of their responsibilities.

(4) to add the following dot points to B.7 in Schedule B:

● This is the Level for employees who hold a relevant AQF Certificate IV qualification.

● In the case of recreational/lifestyle employees, this is the Level for employees who coordinate the provision of lifestyle/diversion therapy in an enterprise or workplace.

[Note: Qualified Diversional Therapists may be covered by the Health Professionals and Support Persons Award 2010 - see clause B.2.1 of Schedule B to that Award.]

(5) to add under the following indicative tasks in B.7 in Schedule B:

(Under Personal Care)

Recreational/Lifestyle employees Grade 2.

[59] Ms Marra Pearn, a qualified Lifestyle Co-ordinator, gave evidence 26 that her employer had difficulty determining what the appropriate classification was for her position. She is currently paid as a level 7. Prior to obtaining a qualification she remained classified as a personal care worker but was paid for her lifestyle work her averaged earnings including penalty rates.

[60] Ms Jane Redpath, a personal care worker, gave evidence 27 that she is required to buddy new employees and that she is not paid any additional money for this.

[61] UV submitted that the current classification structure does not adequately provide for these lifestyle classifications. It submitted that the classification structure is ambiguous and uncertain.

[62] This submission was supported by the HSU.

[63] The AFEI and ACS submitted that there was insufficient evidence to support a conclusion that these lifestyle classifications are not able to be classified by reference to the existing classification structure. AFEI further submits that if they are not in the classification structure in this Award then they would be covered by the Health Professionals and Support Staff Award 2010 28. Business SA supported this latter submission.

[64] The AFEI submitted that the proposed variations to the classification structure had the potential to result in qualifications being the sole determining factor when classifying employees. Further they submitted that UV has not produced cogent evidence to support the proposed variations.

[65] ACS further submitted that these variations would result in increased wages for personal care workers; be prescriptive; not differentiate between classification grades; remove employer discretion as to classification and or grade appointments; result in employees with no AQF qualification or equivalent being paid the same as those who hold the qualifications; expand the notion of experience and remove any utility in engaging employees on entry level or lower classifications; and remove the incentive to improve skills and qualifications.

[66] Business SA submitted that the changes see unqualified diversional staff receive a wage increase of $8.10 per week. This they submit would place the industry under further financial stress.

[67] Business SA also submitted that providing a higher classification based on hours of experience was unnecessary as the classification structure already recognises qualifications, experience and work responsibilities.

Recreational/lifestyle employees

[68] The classification structure in the Award is a skill based classification structure. While it has indicative tasks, the classification structure is not limited to those tasks and was designed to adapt to the changing needs of the industry. It is designed to enable new positions to be placed in the skill based classification structure. That a position is not included in the indicative tasks list does not mean it is not be covered by the Award.

Service recognition

[69] The service recognition proposed by UV introduces into the classification structure the concept of progression based on time served rather than skill.

[70] No substantive evidence was called to support this change. There is insufficient evidence before the Commission to support the variation sought by UV.

[71] I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 7

[72] UV seek to delete clause 22.8(c) which provides as follows:

“(c) Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances in accordance with clauses 25 – Overtime penalty rates and 26 – Shiftwork, with shift allowances being determined by the commencing time of the broken shift.”

and replace it with the following:

(c) Payment for each component of a broken shift will be at ordinary pay with penalty rates and shift allowances in accordance with clauses 25 – Overtime penalty rates and 26 – Shift work, with shift allowances being determined by the commencing time of the broken shift.

[73] Mr Thompson 29 gave evidence that there is confusion about how the clause operates. Mr Thompson said that employers adopt 3 different interpretations of the clause: no penalty is paid if a broken shift commences before 10am regardless of when the second shift finishes; a penalty is paid on the whole broken shift if it concludes after 6pm; or a penalty is paid on the second component of the shift if it concludes after 6pm. Further, he gave evidence that some employers in South Australia are continuing to apply the predecessor award provisions. He gave evidence that this ambiguity is being dealt with as part of enterprise bargaining.

[74] The HSU supported this variation.

[75] AFEI submitted that the clause is not ambiguous as when the penalty is paid is determined by the commencement time of the broken shift. The variation would see it paid for each component.

[76] ACS submitted that the variation would see the penalty paid where it is not currently paid.

[77] Business SA says the clause is not ambiguous as the shift penalty is determined by the commencement time of the broken shift and is then paid for the whole shift.

[78] I do not consider the clause is ambiguous. The variation sought by UV would entitle employees to shift penalties when shift penalties may not currently be payable. There is no substantive evidence to support this claim.

[79] I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 8

[80] FKP Limited seek to vary clause 24.1(b) to provide for a crib break. Currently, if an employee cannot take a meal break he or she is paid overtime. It was submitted that many of their facilities on the weekend only have one person on duty who is required to be available to work during a meal break. They seek the inclusion of a paid crib break.

[81] In circumstances where no evidence was put before the Commission to support the variation, I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Variation 9

[82] Mr Philip Gray proposes to delete “Lifestyle Villages” that have no aged care facilities or staff from the Award.

[83] Mr Gray did not make any submissions or provide any evidence to support his application.

[84] In circumstances where no evidence or detailed submissions were put before the Commission to support the variation, I am unable to conclude that the variation is warranted on the basis that the Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

Conclusion

[85] For the above reasons, I reject all the variations sought to the Award as I am not satisfied that the variations are necessary to “achieve the modern awards objective ” or that the Award is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”

DEPUTY PRESIDENT

Appearances:

A. McCarthy for the Australian Nursing Federation.

W. Ash for United Voice.

M. Rahilly for Clare Dewan & Associates.

G. Boyce and G. Liggins for the Aged Care Community Services Association.

W. Merrotsy for FKP Limited.

M. McLay for the Health Services Union.

P. Gray on his own behalf.

S. Haynes for Australian Business Industrial.

J. Wimalaratna for Australian Federation of Employers & Industries.

S. West for Business SA.

Hearing details:

2013.

Melbourne:

22 March.

 1   MA000018.

 2   [2012] FWAFB 5600.

 3   Exhibit ACS 1.

 4 Ibid at [10].

 5   Exhibit ACS 2.

 6   Ibid at [10]-[12].

 7   Submissions of ABI 8 February 2013.

 8   Transcript PN 76.

 9   Outline of submissions in opposition by United Voice at [4]-[10] 1 March 2013.

 10 [2009] AIRCFB 345 at [147].

 11   Request under section 576C(1) – award modernisation consolidated version.

 12   Exhibit ACS 2 at [13]-[15].

 13   Exhibit ACS 1 at [12]-[13].

 14   [2012] FWA 9420.

 15   MA000034.

 16   Exhibit ACS 2 at [16]-[18].

 17   Exhibit ACS 1 at [14]-[16].

 18   [2011] FWA 5103.

 19   Transcript at PN 218.

 20   Ibid at PN 225.

 21   Ibid at PN 235.

 22   Ibid at PN 244-245.

 23   Ibid at PN 251.

 24   Exhibit UV 1.

 25   Ibid at [5]-[9].

 26   Exhibit UV 2.

 27   Exhibit UV 3.

 28   MA000027.

 29   Exhibit UV 4.

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