Victorian Hospitals’ Industrial Association
[2022] FWCA 1731
•27 MAY 2022
| [2022] FWCA 1731 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Victorian Hospitals’ Industrial Association
(AG2022/1012)
Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025
| Health and welfare services | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 27 MAY 2022 |
Application for variation of the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 – agreement varied.
Introduction
On 19 May 2022, I issued a decision[1] (the Preliminary Decision) in this matter finding that on the basis of the material before me and having heard from the parties, certain provisions of the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025[2] (the Agreement) are uncertain and ambiguous and should be varied accordingly. Having regard to the scope of the variations proposed, I then set these out in a draft order. The parties were invited to provide any comments on the draft order by no later than the close of business on Wednesday, 25 May 2022.
The Victorian Hospitals’ Industry Association (the Applicant) provided comments on the draft order on 25 May 2022 in which they identified typographical errors and also pressed for some substantive changes to particular clauses, which are discussed below.
The Health Workers Union (HWU), being a division of the Health Services Union (HSU), which is covered by the Agreement and which had previously advised that it supported the application, did not provide any further comment. Nor was any feedback received from the Health Services Advocates & Mediators (HSAM), which represented clients during bargaining for the Agreement as an Employee appointed bargaining representative under s.177(1) of the Act.
Consideration
The Applicant identified that the draft order was in error as it failed to capitalise the words ‘Continuous Service’ (a defined term in the Agreement) where those words appear in the clause 1.6B(c) and (d) in Section 3, Schedule 3D - Classification Structure of the Agreement. The draft order was in error and will be corrected in the final order.
A further error was identified in the draft order of a “Leave Loading Amount” figure in the amended table in Section 3, Schedule 3C, Part 1 of the Agreement. The amount stated in the third column of the table of “$1,7261.61” was in error and should read “$1,726.61”. This error will be corrected in the final order.
The Applicant also sought a further amendment to sub-clause 1.6B(d) in Section 3, Schedule 3D - Classification Structure of the Agreement such that the clause should read as follows;
“(d)An Employee whose previous continuous service is not recognised, will commence at Level 1 of their respective Grade and will progress to the next Level effective from their anniversary date with the new Employer, regardless of hours worked per annum or mode of employment.” (emphasis added to highlight proposed change)
Amendments to sub-clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement were considered at length in the Preliminary Decision, with the primary focus of that consideration being in respect of sub-clause (c) which dealt with the treatment of new Employees where continuous service was recognised for the purpose of classifying those employees in the classification structure. The reasoning applied in declining to grant the variation sought in respect of Employees whose continuous service is recognised for the purpose of classifying such an employee is also relevant to consideration of Employees whose continuous service is not recognised. As stated at [19] of the Preliminary Decision;
“[19] I accept that the clause may lead to different employers classifying new employees at various levels in circumstances where those employees come to their new employers with identical continuous service and the same prior classification level. I also accept that a differential outcome in the classification of new employees may arise in employers placing new employees in the classification structure in circumstances where continuous service of those new employees is not recognised. Potential differential outcomes in the classification level of new employees is not attributable to uncertainty or ambiguity in the clause but rather, is a result of the discretion that is conferred by the clause on the employer to classify the employee “having regard” to their previous classification level. There is nothing in the existing wording of the clause that evinces an intention of the parties to constrain an employer’s discretion to classify a new employee at what the employer regards as an appropriate level. To grant the variation in the terms sought would result in re-writing the clause in a manner that was not inherent when the parties concluded the Agreement.”
Clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement confers a discretion on employers in classifying new Employees into the classification structure. That discretion is not affected by whether that new Employee has their prior Continuous Service recognised or not. The employer is only required to “have regard” to that Continuous Service in classifying the Employee. There is no warrant for reading into the clause an intention of the parties to fetter that discretion, such that a new Employee whose continuous service is not recognised must be placed at Level 1 of the relevant grade of the classification structure. For these reasons and those set out in the Preliminary Decision, this particular proposed amendment to sub-clause 1.6B(d) in Section 3, Schedule 3D - Classification Structure of the Agreement is rejected.
Turning to the final matter raised by the Applicant, the variation sought to clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement is by way of insertion of a new sub-clause (e) in the following terms;
“(e) An Employee who moves from a lower Grade to a higher Grade will commence at Level 1 of the higher Grade and progress to the next Level from their anniversary date of starting within the higher Grade each year thereafter, regardless of hours worked per annum or mode of employment”
The proposed sub-clause seeks to clarify the progression of Employees between grades of the classification structure. The basis for the variation sought, the ambiguity and uncertainty it is intended to address and how the proposed sub-clause would interact with clause 1.5 in Section 3, Schedule 3D - Classification Structure of the Agreement which deals with progression of existing employees in the classification structure, is not articulated. I consequently decline to grant the variation sought.
Conclusion
On the basis of the material before me and having heard from the parties, I find that certain provisions in the Agreement are uncertain and ambiguous. Accordingly, the Agreement will be varied as follows;
Clause 1.4(a) in Section 3, Schedule 3D of the Agreement is varied as follows;
(i)By deleting the existing clause 1.4(a) in Section 3, Schedule 3D of the Agreement; and
(ii)By inserting the amended clause 1.4(a) in Section 3, Schedule 3D of the Agreement in the following terms;
“(a)Continuous Service means service, recognised for Long Service Leave purposes, with one and the same Employer or with more than one Employer.”
Clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement is varied as follows;
(i)By deleting sub-clause 1.6B(c) and (d) in Section 3, Schedule 3D - Classification Structure of the Agreement; and
(ii)By inserting the amended sub-clause 1.6B(c) and (d) in Section 3, Schedule 3D - Classification Structure of the Agreement in the following terms;
“(c)An Employee where previous Continuous Service is recognised, will progress to the next Level effective from their previously recognised increment date, regardless of hours worked per annum or mode of employment.
(d)An Employee whose previous Continuous Service is not recognised, will progress to the next Level effective from their anniversary date with the new Employer, regardless of hours worked per annum or mode of employment.”
Clause 59.2(b) of Section 1 of the Agreement is varied as follows;
(i)By deleting the existing clause 59.2(b) in Section 1 of the Agreement; and
(ii)By inserting the amended clause 59.2(b) in Section 1 of the Agreement as follows;
“(b)Continuous Service includes:
(i) continuous service with one and the same Employer or
(ii) continuous service with more than one Employer including Institutions or Statutory Bodies (as defined at subclause 61.1(b)), and
(iii) includes any period of employment that would count as service under the Act.
(iv) an Allowable Period as defined in Section 1, Clause 61.1(b)(i).”
The tables found at Section 3, Schedule 3C, Part 1 and 2 of the Agreement are varied as follows;
(i)By deleting the “Leave Loading Cap” amounts in the existing tables in Section 3, Schedule 3C, Part 1 and 2 of the Agreement; and
(ii)By inserting the following “Leave Loading Cap” amounts in the amended table in Section 3, Schedule 3C, Part 1 of the Agreement as follows;
Leave Loading Cap Leave loading cap (weekly salary exceeds) $1,934.50 $1.937.20 $2,012.70 $2,053.00 $2,094.10 Leave Loading Amount (on 5 weeks annual leave? $1,354.20 $1,726.61 $1,761.11 $1,796.38 $1,832.34
; and
(iii)By inserting the following “Leave Loading Cap” amounts in the amended table in Section 3, Schedule 3C, Part 2 of the Agreement as follows;
Leave Loading Cap Leave loading cap (weekly salary exceeds) $1,934.50 $1.937.20 $2,012.70 $2,053.00 $2,094.10 Leave Loading Amount (on 5 weeks annual leave? $1,354.20 $1,726.61 $1,761.11 $1,796.38 $1,832.34
The tables found at clauses 54.2(a)(ii) and 54.2(b)(ii) in Section 1 of the Agreement are varied as follows;
(i)By deleting the tables in clauses 54.2(a)(ii) and 54.2(b)(ii) in Section 1 of the Agreement; and
(ii)By inserting an amended table in clause 54.2(a)(ii) in Section 1 of the Agreement in the following terms;
Period worked Additional weeks’ leave Total weeks’ leave 48/52 weeks 4 weeks 9 weeks 49/52 weeks 3 weeks 8 weeks 50/52 weeks 2 weeks 7 weeks 51/52 weeks 1 week 6 weeks ; and
(iii)By inserting an amended table in clause 54.2(b)(ii) in Section 1 of the Agreement in the following terms;
Period worked Additional weeks’ leave Total weeks’ leave 44/52 weeks 8 weeks 13 weeks 45/52 weeks 7 weeks 12 weeks 46/52 weeks 6 weeks 11 weeks 47/52 weeks 5 weeks 10 weeks 48/52 weeks 4 weeks 9 weeks 49/52 weeks 3 weeks 8 weeks 50/52 weeks 2 weeks 7 weeks 51/52 weeks 1 week 6 weeks
Clause 25.2(c)(i) in Section 2 of the Agreement is varied as follows;
(i)By deleting the existing clause 25.2(c)(i) in Section 2 of the Agreement; and
(ii)By inserting the amended clause 25.2(c)(i) in Section 2 of the Agreement as follows;
“(i)work is performed in excess of ordinary hours as prescribed in subclause 22.1 of Section 2; or”
Clause 18.5(c) in Section 1 of the Agreement is varied as follows;
(i)By deleting the existing clause 18.5(c) in Section 1 of the Agreement; and
(ii)By inserting the amended clause 18.5(c) in Section 1 of the Agreement in the following terms;
“(c)If after any warning or counselling, a period of 12 months elapses (as relevant) without the Employee repeating a course of Conduct for which the preceding warning or counselling was given, the Employer cannot rely on the preceding warning or counselling for the purpose of issuing a further warning.”
The table found at clause 40.1 in Section 2 of the Agreement is varied as follows;
(i)By deleting the existing table in clause 40.1 in Section 2 of the Agreement;
(ii)By deleting the words “Allied Health Assistant Grade 2” where they appear in the table at Section 2, Schedule 2B – Wage Rates of the Agreement in respect of the “Instructor Trades Qualified IG2” classification under the column headings dealing with pay increases on and from 1 July 2021;
(iii)By inserting an amended table in clause 40.1 in Section 2 of the Agreement in the following terms;
Current classification New classification · Allied Health Assistant Grade 1 (Unqualified)
· Dietary Supervisor
· Instructor Trades (Unqualified)
· Social Worker/Welfare Aide
· Orthotic Technician Grade 1
Allied Health Assistant Grade 1
· Allied Health Assistant Grade 2 (Qualified)
· Instructor Trades (Qualified) less than 3 months
Allied Health Assistant Grade 2
· Allied Health Assistant Grade 3 (Qualified)
· Orthotic Technician Grade 2
· Orthotic Technician Grade 3
· Orthotic Technician Grade 4
· Orthotic Technician Grade 5
· Instructor Trades (Qualified) greater than 3 months
Allied Health Assistant Grade 3
; and
(iv)By inserting the words “Allied Health Assistant Grade 3” in the table at Section 2, Schedule 2B – Wage Rates in the Agreement in respect of the “Instructor Trades Qualified IG2” classification under the column headings dealing with pay increases on and from 1 July 2021
The table found at clause 3.1 in Section 2, Schedule 2D, Part 3 of the Agreement is varied as follows;
(i)by deleting the definition of Dental Maintenance Technician – Manager currently found in the table.
The following tables are varied in the terms set out below;
· Schedule 2B - Wage Rates Part 1 table in Section 2;
· Schedule 3B - Wage Rates Part 1 table in Section 3; and
· Schedule 3B – Wage Rates Part 2 table in Section 3.
(i)By deleting the following paycodes where they currently appear in the table in Schedule 2B - Wage Rates Part 1 in Section 2 of the Agreement;
Section 2: Allied Health Services
Classification Paycode FOOD SERVICES Food and Domestic Services Assistant Grade 1 HA1 Food and Domestic Services Assistant Grade 2 HA18 GENERAL SERVICES Cleaner/Patient Transport Assistant Grade 1 IJ1 Cleaner/Patient Transport Assistant Grade 2 U18 Cleaner Grade 3 JN1 Laundryhand Grade 1 HK6 Laundryhand Grade 2 HK19 TECHNICAL AND PERSONAL CARE Allied Health Assistant Grade 1 TB1 Allied Health Assistant Grade 2 TB2 Allied Health Assistant Grade 3 TB3 Health Care Worker Grade 1 PW11 Health Care Worker Grade 2 CW11 Health Care Worker Grade 3 WP11 Instrument Technician Grade 1 TD18 Instrument Technician Grade 2 TD19 Instrument Technician Grade 3 TD20 Instrument Technician Grade 4 TD21 Instrument Technician Grade 5 TD22 Dual Qualified Technician TD23 Pathology Collector Grade 1 ID1 Pathology Collector Grade 2 ID2 Pathology Collector Grade 3 ID4 Theatre Technician Grade 1 H19 Theatre Technician Grade 2 H20 Theatre Technician Grade 3 H21 Theatre Technician Grade 4 H22 Theatre Technician Grade 5 H23
(ii)By inserting the following paycodes in the table in Schedule 2B - Wage Rates Part 1 in Section 2 of the Agreement;
Section 2: Allied Health Services
Classification Paycode FOOD SERVICES Food and Domestic Services Assistant Grade 1 IN13 Food and Domestic Services Assistant Grade 2 IN14 Cook Grade 1 IN15 Cook Grade 2 IN16 Cook Grade 3 IN17 GENERAL SERVICES Cleaner/Patient Transport Assistant Grade 1 IN18 Cleaner/Patient Transport Assistant Grade 2 IN19 Cleaner Grade 3 IN20 Laundryhand Grade 1 IN21 Laundryhand Grade 2 IN22 TECHNICAL, CLINICAL AND PERSONAL CARE Allied Health Assistant Grade 1 IN28 Allied Health Assistant Grade 2 IN29 Allied Health Assistant Grade 3 IN30 Complementary Therapies Worker Gr.1 IN34 Complementary Therapies Worker Gr. 2 IN35 Complementary Therapies Worker Gr. 3 IN36 Dental Maintenance Technician IN40 Health Care Worker Grade 1 IN37 Health Care Worker Grade 2 IN38 Health Care Worker Grade 3 IN39 Instrument Technician Grade 1 IN1 Instrument Technician Grade 2 IN2 Instrument Technician Grade 3 IN3 Instrument Technician Grade 4 IN4 Instrument Technician Grade 5 IN5 Dual Qualified Technician IN6 Leisure and Lifestyle Assistant Grade 1 IN31 Leisure and Lifestyle Assistant Grade 2 IN32 Leisure and Lifestyle Assistant Grade 3 IN33 Pathology Collector Grade 1 IN23 Pathology Collector Grade 2 IN24 Pathology Collector Grade 3 IN26 Pathology Collector Grade 4 IN27 Pathology Collector Reliever/Mobile Collector IN25 Theatre Technician Grade 1 IN7 Theatre Technician Grade 2 IN8 Theatre Technician Grade 3 IN9 Theatre Technician Grade 4 IN10 Theatre Technician Grade 5 IN11 Liver Transplant Technologist (Austin Health only) IN12
(iii)By inserting the following paycodes in the table in Schedule 3B - Wage Rates, Part 1 in Section 3 of the Agreement;
Section 3: Managers and Administrative Workers (other than Royal Women’s Hospital and Royal Children’s Hospital) Classification Paycode Grade 1 Level 2 HS14 Grade 1 Level 3 HS15 Grade 1 Level 4 HS16 Grade 1 Level 5 HS17 Grade 2 Level 2 HS18 Grade 2 Level 3 HS19 Grade 2 Level 4 HS20 Grade 2 Level 5 HS21 Grade 3 Level 2 HS22 Grade 3 Level 3 HS23 Grade 3 Level 4 HS24 Grade 3 Level 5 HS25 Grade 4 Level 2 HS26 Grade 4 Level 3 HS27 Grade 4 Level 4 HS28 Grade 4 Level 5 HS29 Grade 5 Level 2 HS30 Grade 5 Level 3 HS31 Grade 5 Level 4 HS32 Grade 5 Level 5 HS33
; and
(iv)By inserting the following paycodes in the table in Schedule 3B – Wage Rates, Part 2 in Section 3 of the Agreement;
Section 3: Managers and Administrative Workers (Royal Women’s Hospital and Royal Children’s Hospital) Classification Paycode Grade 1 Level 2 AO13 Grade 1 Level 3 AO14
The variations will operate from 27 May 2022. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] [2020] FWCA 1643.
[2] AE515689.
Printed by authority of the Commonwealth Government Printer
<AE515689 PR742015>
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