Victorian Hospitals’ Industrial Association
[2022] FWCA 1643
•19 MAY 2022
| [2022] FWCA 1643 |
| 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, 19 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.
Introduction
The Victorian Hospitals’ Industry Association (the Applicant) has made an application pursuant to s.217 of the Fair Work Act 2009 (the Act) to vary the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025[1] (the Agreement) to remove ambiguity or uncertainty.
The Applicant is an Employer Association registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) and acts on behalf of the Employers covered by the Agreement. The Health Services Union (the HSU) is covered by the Agreement.
The Agreement was approved by the Commission on 13 April 2022 and commenced operation on 20 April 2022. The Applicant submits that ambiguity or uncertainty exists with respect to several provisions within the Agreement. These are set out and considered below.
A Mention was conducted on 11 April 2022 at which the Health Workers Union (HWU), being a division of the HSU, advised that it supported the application. 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 also appeared at the Mention and confirmed that it supported the application.
Directions were issued on the 12 April 2022 requiring the parties to file material in support of the s.217 Application by 20 April 2022. A joint submission was received from the parties on 20 April 2022.
Statutory Provisions
Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
“(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a)one or more of the employers covered by the agreement;
(b)an employee covered by the agreement;
(c)an employee organisation covered by the agreement.
(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
Consideration
Definition of continuous service
The Applicant seeks to vary clause 1.4(a) in Section 3, Schedule 3D of the Agreement which currently defines continuous service for the purpose of progression through the Schedule 3D classification structure in the following terms;
“(a) Continuous Service includes continuous service with one and the same Employer or continuous service with more than one Employer.”
The variations sought to clause 1.4(a) in Section 3, Schedule 3D of the Agreement, which are highlighted, are 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.”
The Applicant states that the terms of the Agreement provide for the recognition of service with one employer, or more than one employer covered by the Agreement for the purpose of progression through the classification structure. While the Agreement defines “continuous service” for this purpose, the Applicant says that the existing language is susceptible to more than one meaning as an employee who moves from one employer to another could lose recognition for all prior service if, following separation from one employer, they do not commence at the new employer the following calendar day.
The proposed variation will, according to the Applicant, align the definition of “continuous service” with other like terms within the Agreement, ensuring that an employee maintains the continuity of service across multiple employers for the purpose of classification progression if a break in service between employers is no more than that defined under the Long Service Leave provisions of the Agreement. That definition affords an employee a maximum of a five week break in employment between employers covered by the Agreement before continuous service is broken.
The clause allows for the recognition of service for the purpose of classification structure progression, the apparent purpose of which is to allow recognition of service across multiple employers covered by the Agreement which are listed at Section 1, Schedule 1A of the Agreement. The uncertainty in the terms of the Agreement arises from the absence of specific reference to a “break in service” between employers where such reference is found in the Long Service Leave provisions of the Agreement. The absence of such reference in the context of classification structure progression would defeat the apparent intent of the clause to recognise service with more than one employer, other than in the specific circumstance where there was no break at all between employment by different employers.
The existing provision in the Agreement creates uncertainty as to the calculation of “continuous service” with multiple employers covered by the Agreement for the purpose of classification structure progression. I accept that the proposed variation would address that uncertainty by aligning the definition of “continuous service” in clause 1.4(a) in Section 3, Schedule 3D of the Agreement with the definition of “continuous service” used elsewhere in the Agreement. The application to vary clause 1.4(a) in Section 3, Schedule 3D of the Agreement is granted in the terms sought.
Management & Admin Classification Definition
The Applicant seeks to vary clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement which deals with progression through the classification structure and currently states as follows;
“1.6 Progression through classification structure – New Employees
…
B.Grade 1 to 5 only
New Employees who are classified pursuant to this Schedule in Grade 1 through to Grade 5 will progress through the classification structure as follows:
(a)There is no automatic progression between Grades.
(b)An Employee will be classified to the applicable Level having regard to the Employee’s continuous service within the relevant classification.
(c)An Employee where previous continuous service is recognised, will progress to the next Level effective from their anniversary 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.”
The variations sought to clause 1.6B, Schedule 3D - Classification Structure, Section 3 of the Agreement, which are highlighted, are in the following terms;
“1.6 Progression through classification structure – New Employees
…
B.Grade 1 to 5 only
New Employees who are classified pursuant to this Schedule in Grade 1 through to Grade 5 will progress through the classification structure as follows:
(a)There is no automatic progression between Grades.
(b)An Employee will be classified to the applicable Level having regard to the Employee’s continuous service within the relevant classification.
(c)An Employee transferring to a directly comparable role between employers in Schedule 1A, where previous Continuous Service is recognised, will be classified no greater than their classification grade and level with their previous Employer, and 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 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.
The Applicant contends that uncertainty and ambiguity arises in respect of the placement in and progression through the classification structure of new employees, including those transferring between employers covered by the Agreement. That is because while the Agreement adequately deals with how existing employees progress in the classification structure, new employees may not have their service and experience with a previous employer recognised in terms of the classification they will be placed at on commencing employment with a new employer.
The proposed variation would, according to the Applicant, makes clear the negotiating intention of the parties that where an employee commences employment with a new employer in circumstances where their prior service is recognised, they would commence at a classification level no greater than that held with their previous employer. They would also be entitled to then progress to the next Level at their previously recognised increment date.
Clause 1.6B in Section 3, Schedule 3D - Classification Structure of the Agreement sets out the basis for the placement of a new employee in the classification structure and how they then progress within the classification structure. It does so in respect of employees whose continuous service with a previous employer covered by the Agreement is recognised and also with new employees where no prior service is recognised.
The Applicant contends that the negotiating parties intended to impose restrictions on where new employees could be placed into the classification structure so as to prevent new employees being placed at a higher level in the classification structure than other existing comparable employees. That may have been the intention but there is simply no evidence of that intent in the existing clause. It states at sub-clause (b) that a new employee is to be classified at “the applicable Level having regard to the Employee’s continuous service within the relevant classification.” This wording confers a discretion on the employer to place a new employee at a particular level of the classification structure having regard to the employee’s “continuous service” within the relevant classification level. The current wording does not restrict the employer from placing an employee at a higher or lower level in the classification structure than that held with a previous employer. Rather, the current clause requires the employer to have regard to that new employee’s prior classification level in circumstances where continuous service is recognised, in placing the new employee in the classification structure.
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.
For the reasons set out above, I decline to grant the variations sought to the extent that they would impose restrictions on the classification level a new employee may be brought in at when commencing with a new employer.
I do however accept that that there is ambiguity in respect of the reference to the “anniversary date” in sub-clause (c) which deals with the date of progression of a new employee within the classification structure where that employee’s continuous service is recognised. The reference to “anniversary date” in sub-clause (c) is to be contrasted with “anniversary date” where the term appears in sub-clause (d). In sub-clause (d) the “anniversary date” is that established with the “new employer” in circumstances where a new employee’s continuous service with a previous employer is not recognised.
Sub-clause (c), which deals with an employee whose continuous service with a previous employer is recognised by the new employer, makes no reference to whether the date for the purpose of classification progression is that established with a previous employer or the new employer. That, in my view, is likely to create both uncertainty and ambiguity as it is susceptible to more than one meaning.
Having regard to the above, I propose to vary sub-clause (c) in the terms sought to clarify that the “anniversary date” referenced in that sub-clause, which applies to new employees whose continuous service with previous employers is recognised, will be varied so as to refer to the previously recognised “increment date.” I decline to grant the other variations to the clause as sought by the Applicant as I am not persuaded that the clause otherwise gives rise to uncertainty or ambiguity.
Parental Leave
The Applicant seeks to vary clause 59.2(b) in Section 1 of the Agreement which defines continuous service for the purpose of clause 59 Parental Leave and relevantly states as follows;
“59.2 Definitions
For the purposes of this clause:
…
(b) Continuous Service includes continuous service with one and the same Employer or continuous service with more than one Employer including Institutions or Statutory Bodies (as defined at subclause 61.1(b)) and includes any period of employment that would count as service under the Act.”
The variations sought to the clause, which are highlighted, are in the following terms;
“59.2 Definitions
For the purposes of this clause:
…
(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 Applicant states that the terms of the Agreement provide for the portability of service between employers covered by the Agreement for the purpose of determining an entitlement to parental leave. While the Agreement defines “continuous service” for this purpose, the Applicant says that the existing language is susceptible to more than one meaning as an employee who moves from one employer to another could revert back to ‘zero’ in the context of continuous service if, following separation from one employer, they do not commence at their new employer the following calendar day.
The proposed variation will, according to the Applicant, align the definition of “continuous service” with other like terms within the Agreement, ensuring that an employee will only revert to ‘zero’ continuous service if there is a service break longer than the period defined under the Long Service Leave provision within the Agreement, which provides for a maximum 5 weeks break in service between employment by employers covered by the Agreement before continuous service is broken.
The clause allows for the recognition of service with more than one employer for the purpose of access to parental leave. The apparent purpose of the clause is to allow recognition of service across multiple employers covered by the Agreement which are listed at Section 1, Schedule 1A of the Agreement. The provision also defines the period of service as including any period that would count as service under the Act, which is defined at s.22 of the Act. While the definition of “service” found at s.22 of the Act is useful for the purpose of determining periods of service which do not count for the purpose of calculating “service” with one employer, the definition of “service” in the Act is silent on and does not contemplate the calculation of service across multiple employers.
Notwithstanding the intent of the clause to allow for the recognition of service across multiple employers covered by the Agreement, it is silent on how this is to occur in circumstances where there is any break in employment between employers. This is to be contrasted with the calculation of service for the purpose of establishing an employee’s long service leave entitlement under the Agreement. Service for that purpose is dealt with by a definition at clause 61.1(b)(i) in Section 1 of the Agreement which defines an “allowable period of absence” between employment by different employers of up to five weeks without breaking service continuity.
The existing provision in the Agreement creates uncertainty as to the calculation of “continuous service” with multiple employers covered by the Agreement. I accept that the proposed variation would address that uncertainty by aligning the definition of “continuous service” in clause 59.2(b) in Section 1 of the Agreement with the definition of “continuous service” used elsewhere in the Agreement. The application to vary clause 59.2(b) in Section 1 of the Agreement is granted in the terms sought.
Annual Leave Loading
The Applicant seeks to vary the Leave Loading Amount provided for in the tables found in Section 3, Schedule 3C, Part 1 and 2 of the Agreement which currently provide 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 4 weeks annual leave? $1,354.20 $1,381.30 $1,408.90 $1,437.10 $1,485.80
The variations sought to the tables, which are highlighted, are in the following terms;
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 $1,7261.61 $1,761.11 $1,796.38 $1,832.34
The Applicant contends that the proposed variation is necessary to ensure that the “Leave Loading Cap” amounts found in the table reflects terms found elsewhere in the Agreement by providing for the calculation and payment of leave loading based on five weeks and not four weeks annual leave as currently stated in the tables. According to the Applicant, the uncertainty and ambiguity arises from the fact that clause 53.7(d) of the Agreement provides for the payment of annual leave loading on the basis of five weeks annual leave. That entitlement is not reflected in the tables found in Section 3, Schedule 3C, Part 1 and Part 2.
I am satisfied that there is a conflict between the entitlement expressed in clause 53.7(d) in Section 1 of the Agreement and the tables set out at in Section 3, Schedule 3C, Part 1 and 2 of the Agreement. One of the negotiated outcomes of the Agreement was that of the granting of an additional weeks’ annual leave entitlement such that the base annual leave entitlement increased from four weeks in the previous agreement to five weeks in the Agreement. That entitlement is provided for at clause 53.1 of the Agreement. Clause 53.7(d) of the Agreement which provides for annual leave loading, was drafted to reflect the agreed increase in the base annual leave entitlement such that the leave loading is expressed as being calculated on the basis of five weeks’ annual leave. That five week annual leave loading entitlement is not reflected in Section 3, Schedule 3C, Part 1 & 2 of the Agreement which sets out the cap on annual leave loading, and retains a cap based on four weeks’ annual leave.
I am satisfied that the above-described conflict between clause 53.7(d) and the table found at Section 3, Schedule 3C, Part 1 and 2 of the Agreement creates both ambiguity and uncertainty as the provisions in the Agreement are susceptible to more than one meaning. The application to vary the tables in Section 3, Schedule 3C, Part 1 and 2 of the Agreement is granted in the terms sought.
Purchased Leave
The Applicant seeks to vary the tables found at clause 54.2(a)(ii) and 54.2(b)(ii) in Section 1 of the Agreement which currently provide as follows;
“54. Purchased Leave
…
54.2 The amount of additional leave that may be purchased varies according to the classification of the Employee as follows:
(a) Employees other than Dental Assistants employed by DHSV or Ballarat Health Service
…
(ii) Where the Employer and Employee agree to a reduction in the number of working weeks, the Employee will receive additional leave as follows:
Period worked Additional weeks’ leave Total weeks’ leave 48/52 weeks 4 weeks 8 weeks 49/52 weeks 3 weeks 7 weeks 50/52 weeks 2 weeks 6 weeks 51/52 weeks 1 week 5 weeks
(b) Dental Assistants Employed by DHSV or Ballarat Health Service:
…
(ii)Where the Employer and Employee agree to a reduction in the number of working weeks, the Employee will receive additional leave as follows:
Period worked Additional weeks’ leave Total weeks’ leave 44/52 weeks 8 weeks 12 weeks 45/52 weeks 7 weeks 11 weeks 46/52 weeks 6 weeks 10 weeks 47/52 weeks 5 weeks 9 weeks 48/52 weeks 4 weeks 8 weeks 49/52 weeks 3 weeks 7 weeks 50/52 weeks 2 weeks 6 weeks 51/52 weeks 1 week 5 weeks
The variations sought to the tables, which are highlighted, are in the following terms;
“54. Purchased Leave
…
54.2 The amount of additional leave that may be purchased varies according to the classification of the Employee as follows:
(a) Employees other than Dental Assistants employed by DHSV or Ballarat Health Service
…
(ii) Where the Employer and Employee agree to a reduction in the number of working weeks, the Employee will receive additional leave as follows:
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
(a) Dental Assistants Employed by DHSV or Ballarat Health Service:
…
(ii)Where the Employer and Employee agree to a reduction in the number of working weeks, the Employee will receive additional leave as follows:
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 54.2(a) of the Agreement provides for the purchase of additional annual leave of up to four weeks while clause 54.2(b) provides for the purchase of additional annual leave of up to eight weeks. The purchase of that additional annual leave is on top of the base annual leave entitlement of five weeks. The tables set out above at [36] do not however reflect the base annual leave entitlement of five weeks agreed between the parties, above which employees may purchase up to an additional four weeks’ (clause 54.2(a)) or eight weeks’ annual leave (clause 54.2(b)). Rather, the tables reflect a base annual leave entitlement of four weeks annual leave which is incorrect. If the variation is not made there will be uncertainty as to whether employees are able to respectively purchase up to four weeks’ (clause 54.2(a)) or eight weeks’ (clause 54.2(b)) annual leave.
I am satisfied that the proposed variation would address the uncertainty or ambiguity by ensuring the “total weeks’ leave” provided for in the tables at clause 54.2 of the Agreement properly contemplates the base entitlement of five weeks annual leave as well as the additional leave able to be purchased. The application to vary the tables found at clause 54.2(a)(ii) and 54.2(b)(ii) in Section 1 of the Agreement is granted in the terms sought.
Overtime
The Applicant seeks to vary clause 25.2(c)(i) in Section 2 of the Agreement where it currently states as follows;
“25.2 Overtime, other than for time worked during the daylight savings change over period prescribed at subclause 49.1 of Section 1, means work that is performed:
…
(c) by a casual employee where:
(i)work is performed in excess of ordinary hours as prescribed in subclause 24.1 of Section 1; or
(ii)work is performed in excess of twelve hours in any one shift.”
The variation sought to clause 25.2(c)(i) of Section 2 of the Agreement, which is highlighted, is in the following terms;
“25.2 Overtime, other than for time worked during the daylight savings change over period prescribed at subclause 49.1 of Section 1, means work that is performed:
…
(c)by a casual employee where:
(i) work is performed in excess of ordinary hours as prescribed in subclause 22.1 of Section 2; or
(ii)work is performed in excess of twelve hours in any one shift.”
The Applicant submits that the proposed variation addresses an ambiguity or uncertainty arising from an incorrect clause cross reference in clause 25.2(c)(i) in Section 2 of the Agreement. According to the Applicant, a failure to correct the clause cross reference will mean that the Overtime provisions applying to casual employees, as currently written, will not contemplate their ordinary hours of work.
I am satisfied that the erroneous clause cross reference is apt to create uncertainty in respect of the overtime entitlement of casual employees such that there is no clear link between an entitlement to the payment of overtime for work performed beyond a casual employee’s ordinary hours of work. The application to vary clause 25.2(c)(i) in Section 2 of the Agreement is granted in the terms sought.
Managing Conduct and Performance
The Applicant seeks to vary clause 18.5(c) of Section 1 of the Agreement where it currently states;
“18.5 Possible outcomes
…
(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 using a further warning.”
The variation sought to clause 18.5(c) of Section 1, which is highlighted, is in the following terms;
“18.5 Possible outcomes
…
(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 proposed variation would, according to the Applicant, address the ambiguity or uncertainty arising from the erroneous use of the word “using” in the fourth line of clause 18.5(c). The Applicant says this would ensure the proper protection of employees from the use of preceding warnings or counselling that were issued more than 12 months prior to further proposed disciplinary action. According to the Applicant, the current problematic wording of “using a further warning” implies that an employer may seek to use or rely on a warning that does not yet exist for an undefined purpose.
The Applicant submits that the error was unintentional, altered the provision in a manner that was different to the provision in the prior agreement, and most likely arose from an auto correct error that was missed by the drafters of the Agreement. Variation of the provision in the manner proposed would ensure the ambiguity or uncertainty was removed.
I accept that the use of the word “using” in the fourth line of clause 18.5(c) creates uncertainty as to the meaning of the clause. Whereas the apparent intention of the clause is to provide a 12 month time limit on the reliance that may be placed by an employer on prior warnings/counselling, use of the term “using” appears to refer to reliance on a warning not yet issued. The uncertainty can be remedied by replacement of the word “using” with “issuing.” The Application for variation of clause 18.5(c) of Section 1 of the Agreement is granted in the terms sought .
Allied Health Assistant Structure (Instructor Trades)
The Applicant seeks to vary the table in clause 40.1 in Section 2 of the Agreement where it currently states;
40.1From FFPPOA 1 July 2021, Employees classified as Allied Health Assistants, Dietary Supervisor, Instructor Trades, Orthotic Technician or Social Worker/Welfare Aide will translate to the new Allied Health Assistant classification structure as follows:
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)
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
Allied Health Assistant Grade 3
The variation sought in the table in clause 40.1 in Section 2 of the Agreement, which is highlighted, is set out below;
40.1From FFPPOA 1 July 2021, Employees classified as Allied Health Assistants, Dietary Supervisor, Instructor Trades, Orthotic Technician or Social Worker/Welfare Aide will translate to the new Allied Health Assistant classification structure as follows:
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
The Agreement provision currently provides that the Instructor Trades (Qualified) classification translates to the new classification of Allied Health Assistant Grade 2. The Applicant states that while this is correct for those with less than 3 months experience, if this were applied to those with over 3 months experience, those employees would experience a wage decrease. The variation sought would, the Applicant submits, remove the uncertainty regarding the translation of the existing classification of Instructor Trades (Qualified) with greater than 3 months experience into the revised classification structure.
I am satisfied that uncertainty arises from the current table at clause 40.1 in Section 2 of the Agreement in that it only provides for two Instructor Trades classifications those being Instructor Trades (Unqualified) and Instructor Trades (Qualified) whereas the relevant wage rate table at Schedule 2B – Wage Rates in Section 2 of the Agreement provides for three classifications. The three classifications in the wage rate table are;
· Instructor Trades (Unqualified) – Pay Code IG4
· Instructor Trades (Qualified) – Pay Code IG1
· Instructor Trades (Qualified) – Pay Code IG2
The two Instructor Trades (Qualified) IG1 and IG2 classifications have different wage rates, the IG2 rate being at a higher level. This creates uncertainty as to how the classification of Instructor Trades (Qualified) found at clause 40.1 in Section 2 of the Agreement aligns with the wage rates provided for at Schedule 2B – Wage Rates in Section 2 of the Agreement.
A further uncertainty arises in that the current IG2 rate of pay in the above-referred wage rate table, while higher than that of the current IG1 rate of pay, is expressed as translating to the same classification level (of Allied Health Assistant Grade 2) in the new classification structure from 1 July 2021. This would have the effect of reducing the rate of pay of experienced Instructor Trades (Qualified) staff from the first full pay period after 1 July 2021.
Having regard to the uncertainties identified above, I am satisfied that the application to vary the current table at clause 40.1 in Section 2 of the Agreement in the terms sought should be granted. It is also appropriate to vary the Schedule 2B – Wage Rate table in Section 2 of the Agreement in respect of the IG2 classification such that the rate of pay to apply on and from 1 July 2021 will be that of the Allied Health Assistant Grade 3 rate of pay.
Dental Maintenance Technician Manager
The Applicant seeks to vary the table found at clause 3.1 in Section 2, Schedule 2D, Part 3 of the Agreement by deleting the definition of Dental Maintenance Technician – Manager currently found in the table which relevantly states as follows;
Dental Maintenance Technician – Manager Means a person appointed as such performing work which involves the management of Dental maintenance Technicians. Such a person would be responsible for administrative duties such as work allocation, training, rostering and guidance of relevant employees and may assist in the recruitment of employees.
The Applicant contends that the proposed variation would address ambiguity or uncertainty by deleting reference in clause 3 in Section 2, Schedule 2D, Part 3 of the Agreement to the classification “Dental Maintenance Technician – Manager’ as there is no corresponding wage rate within Section 2.
I accept that the current definition of Dental Maintenance Technician – Manager found at clause 3.1 in Section 2, Schedule 2D, Part 3 of the Agreement creates uncertainty as there is no supporting wage rate for that classification in Section 2 of the Agreement. Rather, the classification is now covered by the Grade 3 classification definition found at Clause 5, Section 3, Schedule 3D of the Agreement, which is supported by an accompanying rate of pay. The Application to vary the table found at clause 3.1 in Section 2, Schedule 2D, Part 3 of the Agreement is granted in the terms sought .
Paycodes
The Applicant seeks for variations to be made to insert correct paycodes for various classifications in wage rate tables of the Agreement where paycodes have either been omitted or are incorrect. The various tables impacted by the variations sought are as follows;
· 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.
The Applicant contends that the uncertainty arises from the difficulty employees and employers will confront in ensuring that employees are being paid correctly as payslips of employees refer to paycodes. Unless paycodes are matched in the Agreement against specific classifications, uncertainty arises according to the Applicant as to whether employees are classified and paid correctly.
I am satisfied that the inclusion of accurate paycodes against classifications in the Agreement is necessary to avoid uncertainty for both employers and employees and ensure employees are paid correctly. The application to vary the tables identified above at [59] is granted in the terms sought.
Conclusion
On the basis of the material before me and having heard from the parties, I find that certain provisions in the Agreement, as set out and considered above, are uncertain and ambiguous. Accordingly, I propose to vary the Agreement in the terms set out in the attached draft order (see Attachment A). The parties are invited to provide any comments on the proposed variations set out in the draft order by no later than the close of business on Wednesday, 25 May 2022.
DEPUTY PRESIDENT
Attachment A
| draft ORDER |
Fair Work Act 2009
s.217—Enterprise agreement
Victorian Hospitals’ Industrial Association
(AG2022/1012)
| Deputy President Masson | MELBOURNE, 19 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.
Pursuant to the decision issued on Day XX Month 2022, I order that the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021- 2025[2] (the Agreement)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) in Section 3, Schedule 3D - Classification Structure of the Agreement; and
(ii)By inserting the amended sub-clause 1.6B(c) 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.”
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 $1,7261.61 $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 $1,7261.61 $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
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 Day XX Month 2022.
DEPUTY PRESIDENT
[1] AE515689.
[2] AE515689.
Printed by authority of the Commonwealth Government Printer
<AE515689 PR741746>
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