Valmai Archer

[2010] FWA 2702

[2010] FWA 2702

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 9 - Application for an order remedying reduction in take-home pay resulting from a modern award

Valmai Archer
(C2010/2975)

DEPUTY PRESIDENT IVES MELBOURNE, 7 APRIL 2010

[1] Ms Valmai Archer (the Applicant) has made an application, pursuant to Schedule 5, Item 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) alleging that she has suffered an award modernisation-related reduction in take-home pay from her employer Berkeley Challenge Pty Ltd (the Respondent), a wholly owned subsidiary of the Spotless Group Ltd.

[2] The Applicant’s application was the subject of a hearing on 16 March 2010. This hearing was adjourned subject to the outcome, before the Full Bench in the Award Modernisation matter, of an application to vary the Cleaning Services Award 2010 (the CS Award) which is the award now covering the Applicant’s employment and which had allegedly resulted in the reduction in take-home pay.

[3] It appeared, at the time of the hearing, that a decision of the Full Bench approving the variation to the CS Award had potential to resolve certain issues that had allegedly arisen in relation to the Applicant’s take-home pay.

[4] Subsequent to the hearing the Respondent, in response to a request from Fair Work Australia (FWA) filed written submissions dated 23 March 2010, related to the Applicant’s application.

[5] The Applicant was forwarded a copy of the Respondent’s submissions and provided with an opportunity to respond. No response was forthcoming.

[6] On 26 March 2010 the Award Modernisation Full Bench issued a decision varying the CS Award. 1

Relevant Employment Details

[7] The Applicant is employed by the Respondent as a cleaner at the St Andrew’s Hospital in Adelaide.

[8] The applicant works on a permanent part-time basis and up to and including 31 December 2009 her conditions of employment were governed by a Notional Agreement Preserving a State Award [AN150064] (the NAPSA) based upon the Health Services Employees Award, an award of the Industrial Relations Commission of South Australia.

[9] From 1 January 2010 the Applicant’s employment has been governed by the CS Award.

[10] Until 1 January 2010, the Applicant was classified, under the NAPSA, as Characteristic Level 2, Increment Part 2 and entitled to an hourly rate of $16.17 per hour. Since 1 January 2010 the Applicant has been classified as a Cleaning Services Employee (CSE) Level 1 under the CS Award and entitled to an hourly rate of $15.34.

The Applicant’s Claim

[11] The Applicant claimed that her alleged reduction in take-home pay was as a consequence of:

(i) a reduced hourly rate;

(ii) a reduced afternoon shift penalty;

(iii) a reduction in hours of work from 27.5 hours over six consecutive days to 22.5 hours over five consecutive days as a result of a claimed CS Award based inability to work six days consecutively. The CS Award at sub-clause 24.4 provides:

“24.4 Days off per week

Each employee will be entitled to two consecutive full days off within each seven day cycle.”

The Legislation

[12] The TPCA Act relevantly provides at Schedule 5, Item 9(1):

“(1) If FWA is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation-related reduction in take-home pay, FWA may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that FWA considers appropriate to remedy the situation.”

[13] A modernisation-related reduction in take-home pay is defined in Schedule 5, Item 8 of the TPCA Act as follows:

“(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if:

(a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and

(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and

(c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and

(d) that reduction in the employee’s take-home pay is attributable to the Part 10A award modernisation process.”

[14] Schedule 5, Item 10 of the TPCA Act provides:

“(1) FWA must not make a take-home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:

(a) FWA considers that the modernisation-related reduction in take-home pay is minor or insignificant; or

(b) FWA is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.

(2) FWA must ensure that a take-home pay order is expressed so that:

(a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation-related reduction in take-home pay; and

(b) if the take-home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.”

The Reduction in Hours

[15] Prior to 1 January 2010 the Applicant worked part-time hours totalling 27.5 per week.

[16] Since 1 January 2010 the Applicant has worked 22.5 hours per week as a consequence, according to her, of sub-clause 24.4 of the CS Award (referred to above).

[17] It is apparent from Schedule 5, Item 8(3)(c) of the TPCA Act that the reduction in the Applicant’s hours of work from 27.5 to 22.5 per week is not a matter that is capable of being addressed by an order of the type sought by the Applicant’s application.

[18] The CS Award contains, at Clause 7, a Flexibility provision that may be able to be utilised by the Applicant and the Respondent to remove any restriction or perceived restriction to hours of work imposed by sub-clause 24.4 of the CS Award.

The Alleged Reduction in Take-Home Pay

[19] In its written submission the Respondent provided comparative figures and the basis of calculation for the Applicant’s actual or, as the case may be, notional earnings for both a 27.5 and 22.5 hour week under the NAPSA and under the CS Award.

[20] Those figures do not demonstrate any reduction in take-home pay within the meaning of Schedule 5, Item 9 of the TPCA Act. On the contrary, the figures demonstrate a small increase in take-home pay under the CS Award.

[21] I have had the opportunity to have those figures and the basis for calculating them checked against the relevant provisions of the NAPSA and the CS Award and, while some issue may be taken about whether the Applicant should have received the 15% afternoon shift penalty provided for by the CS Award rather than the transitional amount that, in some circumstances, applied under the same award, I accept that, in any case, the Applicant suffered no reduction in take-home pay within the meaning of the relevant provisions of the TCPA Act.

[22] Accordingly, the Applicant’s application must be dismissed.

The Award Variation

[23] It is not strictly necessary insofar as the application before me is concerned but it is noteworthy, from the perspective of completeness, to refer briefly to the 26 March 2010 decision of the Full Bench in the matter of the variation of the CS Award.

[24] The Full Bench accepted the need to vary the CS Award and did so in a manner that, inter alia, has the effect of saving particular entitlements of employees previously covered by the NAPSA. The Full Bench stated:

“The amendment seeks to vary Schedule A – Savings Provisions and Schedule B –Transitional Provisions of the modern award to rectify errors and omissions made in drafting these Schedules. The Schedules are expressed in both a narrative form and by the inclusion of tables which translate the application of those provisions in terms of actual rates for each of the award-based transitional instruments that the modern award replaces. In the initial drafting of those tables some omissions occurred. An example of this is the failure to accurately provide in those schedules for employees of cleaning contractors previously covered by the Private Contractors (Public Hospitals) Award, and the Health Services Employees Award, both award-based transitional instruments applying in South Australia. These employees were previously considered to be part of the health sector but are now covered by the Cleaning Services Award 2010.”

[25] The Applicant’s employment will now be governed by the varied CS Award.

Conclusion

[26] The Applicant’s application is dismissed.

[27] I order accordingly.

DEPUTY PRESIDENT

Appearances:

V Archer for herself

U Ebert and I Kathreptis for Spotless Group Ltd

Hearing details:

2010.

Adelaide:

March 16.

Final written submissions:

2010.

March, 23

 1   Liquor, Hospitality and Miscellaneous Union – Cleaning Services Award 2010, 26 March 2010, FWA Full Bench (Giudice J, Lawler VP, Watson VP, Watson SDP, Harrison SDP, Acton SDP, Smith C) [PR995392]

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