1
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards – Nurses Award 2010
(AM2019/17)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 5 NOVEMBER 2020
4 yearly review of modern awards – finalisation of Exposure Drafts and variation
determinations – Tranche 3 – Nurses Award 2010.
[1] This Full Bench has been constituted to oversee the process for finalising the exposure
drafts produced during the 4 yearly review of modern awards (the Review) and the
consequent variation of each modern award. For that purpose, the modern awards were
divided into 3 Tranches. This decision deals with the Nurses Award 2010 (Nurses Award).
[2] In a decision published on 2 September 2019,1 we outlined the process for finalising
the exposure drafts and consequent variations of each award.
[3] On 29 January 2020, we issued a decision2 in relation to finalising the exposure drafts
in Tranche 3 awards, including the Nurses Award. An Exposure Draft and a draft variation
determination for the Nurses Award were issued with that decision. We expressed
the provisional view that the variation of the modern awards in accordance with the published
draft variation determinations was, in respect of each of the Tranche 3 awards, necessary to
achieve the modern awards objective.
[4] On 23 March 2020 we published a Statement3 and a Background Paper which
summarised the submissions filed in respect of the modern awards in Tranche 3 and also:
set out some minor drafting errors and omissions in the exposure drafts and draft
variation determinations, which we proposed to correct;
set out some provisional views in response to submissions put; and
invited interested parties to comment on certain submissions.
1 [2019] FWCFB 6077
2 [2020] FWCFB 421
3 [2020] FWCFB 1539
[2020] FWCFB 5883
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-background-paper-230320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/ma000034-ed-draft-determination.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/ma000034-ed-draft-determination.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/ma000034-ed-tracked.pdf
[2020] FWCFB 5883
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[5] In a further decision issued on 27 April 20204 (the April 2020 decision), we set out the
next steps for dealing with the Tranche 3 awards, following the receipt of submissions and
reply submissions by interested parties. The April 2020 Decision divided the Tranche 3
awards into five categories. The Nurses Award was noted as a category 5 award and we said
the following in relation to that award:
‘[325] Ai Group has filed an application (AM2020/1) to vary the Nurses Award, regarding the
quantum of the casual loading payable. Ai Group seeks ‘a determination retrospectively
varying’ the Award so that it expressly requires, with respect to casual employees:
(a) The Saturday and Sunday penalty rates prescribed by clause 26 of the Award are
calculated on the minimum hourly rate prescribed by the Award and not on a rate that
includes the separate casual loading prescribed by clause 10.4(b).
(b) The overtime rates prescribed by clause 28 of the Award are calculated on the
minimum hourly rate prescribed by the Award and not on a rate that includes the
separate casual loading prescribed by clause 10.4(b).
(c) The public holiday penalty rates prescribed by clause 32.1 of the Award are
calculated on the minimum hourly rate prescribed by the Award and not on a rate that
includes the separate casual loading prescribed by clause 10.4(b).
[326] The Ai Group application was partially in response to an ANMF submission of 13 June
2019 concerning the version of the Exposure Draft of the Award published on 22 February
2019. The ANMF submission concerned the interpretation of the Award in light of the Full
Bench decision in Australian Nursing and Midwifery Federation v Domain Aged Care (QLD)
Pty Ltd T/A Opal Aged Care.
[327] Directions have been issued in AM2020/1 and it is listed for hearing on 1 September
2020.
[328] Ai Group and the ANMF both submit that the Commission should defer finalisation of
the Exposure Draft and draft variation determination until AM2020/1 has been determined.
[329] At [278] of the Tranche 3 BP we agreed to the deferral of the finalisation of the
Exposure Draft and draft variation determination until the claim in matter AM2020/1 has been
determined. In doing so we noted that the claim in AM2020/1 only impacts on a limited
number of clauses and schedules and saw no reason why the process of resolving any issues
cannot proceed in respect of the clauses in the Exposure Draft and draft variation
determinations which are unrelated to AM2020/1.
[330] At [280] of the Tranche 3 BP we proposed that:
1. Ai Group and the ANMF are to file a joint note indicating the terms of the Exposure
Draft and draft variation determination which are related to AM2020/1.
2. In July 2020 a revised Exposure Draft and draft variation determination will be
published (to reflect any changes necessary as result of the Annual Wage Review
decision) and a mention hearing held to set a timetable for parties to make submissions
in relation to the clauses which are unrelated to AM2020/1.
4 [2020] FWCFB 2124
[2020] FWCFB 5883
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[331] Interested parties were invited to comment on this proposal. ABI, Ai Group and the
ANMF support the proposal. In addition, the ANMF seeks clarity as to the timeframe for
providing the joint note. The joint note is to be filed by 4pm on Friday 22 May 2020.5
(footnotes omitted)
[6] On 22 May 2020, Ai Group and the ANMF filed a joint note outlining the terms of the
exposure draft that were the subject of AM2020/1. The joint noted set out the following:
‘2. In application AM2020/1, Ai Group seeks to amend the Award with regard to how the
casual loading interacts with:
(a) The Saturday and Sunday penalty rates prescribed by current clause 26;
(b) The overtime rates prescribed by current clause 28; and
(c) The public holiday penalty rates prescribed by current clause 32.1.
3. The central issue in AM2020/1 is whether the casual loading and the
aforementioned amounts are calculated on a cumulative or compounding basis.
4. The parties have identified the following terms of the ED and DVD as clearly relating to
AM2020/1. As at the time of filing this joint note, the parties have not yet filed their material
in relation to AM2020/1. If the parties identify additional provisions of the ED and DVD that
they consider are also related to AM2020/1 in the course of that matter being considered, they
may separately or jointly seek leave to identify any such additional provisions to the
Commission in the context of these proceedings.
(a) ED and DVD clause 11.2
. . .
(b) ED and DVD clause 11.4
. . .
(c) ED and DVD clause 21
. . .
(d) ED and DVD clause 19.1
. . .
(e) ED and DVD clause 28.2
. . .
(f) ED and DVD Schedule B—Summary of Hourly Rates of Pay.’
[7] In a decision issued on 6 October 20206 (the October 2020 decision) relating to the
finalisation of a number of Tranche 3 awards we said the following in relation to the Nurses
Award:
‘In relation to the Nurses Award 2010 (Nurses Award), Ai Group and the ANMF filed a joint
note on 22 May 2020 indicating the terms of the Exposure Draft and draft variation
determination which are related to proceedings in AM2020/1. The joint note identified 6
clauses which were related to AM2020/1. A revised Exposure Draft and draft variation
determination will be published for the Nurses Award shortly. Any clause that is the subject of
AM2020/1 will appear in the revised exposure draft as it appears in the current Nurses Award.
Parties will be provided an opportunity to make comment in relation to those aspects of the
5 [2020] FWCFB 2124 at [325] - [331]
6 [2020] FWCFB 5307
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-anmfandanor-250520.pdf
[2020] FWCFB 5883
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revised Exposure Draft and draft variation determination which are unrelated to AM2020/1. A
final variation determination for the Nurses Award will then be issued.’7
[8] A revised draft variation determination for the Nurses Award will be published with
this decision. The following changes have been incorporated into the revised draft variation
determination since it was last published on 29 January 2020:
A number of minor errors, or minor drafting deficiencies have been corrected;8
The wage rates and expense related allowances have been updated pursuant to the
Annual Wage Review Decision 2019-209 (increases for the Nurses Award took
effect from 1 July 2020);
Clause 16.3 has been substituted pursuant to a determination issued in the Payment
of Wages common issue (AM2016/8);10
Insertion of Schedule X—Additional Measures During the COVID-19 Pandemic and
Schedule Y— Industry Specific Measures During the COVID-19 Pandemic, in line
with the decisions issued by the Full Benches in AM2020/12 and AM2020/13.
[9] As outlined in the October 2020 decision, any clause the subject of AM2020/1 now
appears in the draft variation determination as it currently appears in the Nurses Award. The
relevant clauses are as follows:
11.2 and 11.4—casual employees
19.1—overtime penalty rates
21—Saturday and Sunday work
28.2—payment for work done on public holidays and
Schedule B—Summary of hourly rates of pay
[10] It should be noted that AM2020/1 was heard on 20 October 2020 and a decision in
that matter is reserved.
[11] For each clause listed above at [9] a comment has been inserted at the relevant clause
indicating that the final variation determination for the Nurses Award will be issued using
language consistent with the remainder of the award, and may be varied in line with any
determination of the Full Bench in AM2020/1.
[12] In relation to Schedule B—Summary of hourly rates (which is a new schedule and
does not exist in the current award) a comment box has been inserted indicating that the
contents of the schedule may be varied in line with any determination of the Full Bench in
AM2020/1.
7 [2020] FWCFB 5307 at [188]
8 A typographical error at clause 3.3; a formatting error at clause 13.1(a) and subsequent cross references; changes to
terminology in clauses 19.1(c) and 28.4 to ensure consistency in terms; a typographical error at the Part 8 heading has
been corrected; the words ‘meal allowances’ deleted from the last row at the table at C.2.1.
9 [2020] FWCFB 3500
10 PR719898. Note that references to ‘paragraph’ in clause 16.3 have been amended to refer to ‘clause’ and references to
‘s.120’ and ‘s.113’ at clause 16.3 have been amended to refer to ‘section 120’ and ‘section 113’ to ensure consistency
throughout the award
[2020] FWCFB 5883
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Next steps
[13] A revised draft variation determination will be published concurrently with this
decision. Interested parties are directed to comment on the contents of the draft variation
determination by 4pm Thursday, 19 November 2020. Any reply comments are to be filed by
4pm Thursday, 26 November 2020. We will determine any disputed issues on the papers.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR724222
