1
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 4 DECEMBER 2020
4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation
determinations – Tranche 3 – Nurses Award 2010.
[1] This Full Bench is dealing with the finalisation of exposure drafts produced during the
4 yearly review of modern awards (the Review). This statement deals with the Nurses Award
2010 (Nurses Award).
Background
[2] In a decision issued on 5 November 2020 (the November 2020 Decision)1, we outlined
the background to the finalisation of the exposure draft for the Nurses Award,2 we need not
repeat that background here.
[3] In the November 2020 Decision we decided to incorporate a number of changes into
the draft variation determination, and noted that any clause that was the subject of ongoing
proceedings in AM2020/1 would appear in the draft variation determination as it currently
appears in the Nurses Award. The claim in AM2020/1 affects a number of clauses in the
award relating to casual loadings. AM2020/1 was heard on 20 October 2020 and a decision in
the matter is reserved.
[4] A revised draft variation determination was published with the November 2020
Decision and interested parties were directed to provide any submissions on the aspects of the
draft award variation determination unrelated to AM2020/1 before a final variation
determination would be issued. We indicated that the final variation determination would be
varied in line with any determination of the Full Bench in AM2020/1.
[5] The ANMF, Ai Group and Australian Business Industrial, the NSW Business
Chamber and Leading Age Services Australia Ltd filed submissions in response to the
November decision.
1 [2020] FWCFB 5883
2 [2020] FWCFB 5883 at [2] – [7]
[2020] FWCFB 6499
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5883.htm
[2020] FWCFB 6499
2
Submissions
‘Shiftwork Loadings’
[6] ABI noted that the following inconsistencies appear in terminology used for shiftwork
loadings in the following clauses:
clause 11.4 provides for the payment of ‘shift allowances’;
clause 19.1(c) refers to ‘shift loadings’; and
clause 20.2 characterises these payments as ‘shiftwork loadings’.3
[7] For consistency, the ABI proposed the terminology be amended across the clauses and
prefers the term ‘shiftwork loadings’ is used.
[8] The ANMF agrees with the ABI in relation to this issue4 and notes that the use of the
phrase ‘shiftwork loadings’ is also preferable because the name of the clause from which the
entitlement is derived is ‘20.2 Shiftwork loading’. The ANMF also submit the phrase
‘shiftwork loadings’ is used at clause 28.6(b) and in Schedule B at clauses B.3.1 and B.3.3 of
the draft determination. 5
[9] We agree with the proposed amendment. The terminology at clause 11.4 and 19.1(c)
will be changed to ‘shiftwork loadings’ in the variation determination.
'Overtime for casuals' decisions (AM2017/51)
[10] The ANMF refers to two decisions issued by the Overtime for Casuals Full Bench in
AM2017/51 on 18 August 20206 and 30 October 20207. The ANMF notes the subsequent
determination based on these decisions, effective from 20 November 2020, provides that the
Nurses Award should be varied in the following ways:
‘1. By inserting the words “for each ordinary hour worked” at the end of clause 10.4(b)
2. By inserting the words “by full-time, part-time and casual employees” after the words
“Hours worked” appearing in clause 28.1(a).’8
[11] The ANMF submits these changes to clauses 10.4(b) and 28.1(a) should be reflected
in the equivalent clauses in the most recently published determination and that clause 11.2 is
the equivalent clause for 10.4(b) and should read as follows:
3 ABI and NSWBC Submission 19 November 2020 at [1]
4 ANMF Submission 26 November 2020
5 Ibid
6 [2020] FWCFB 4350
7 [2020] FWCFB 5636
8 4 yearly review of modern awards – common issue – overtime for casuals – Nurses Award 2010, PR723938 30 October
2020
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5636.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb4350.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-reply-anmf-261120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-reply-anmf-261120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-abinswbc-anor-191120.pdf
[2020] FWCFB 6499
3
‘A casual employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to
the employee’s classification plus a casual loading of 25% for each ordinary hour worked.’
[12] The ANMF submits that clause 19.1(a) is the equivalent clause for 28.1(a) and should
read as follows:
‘Hours worked by full-time, part-time and casual employees in excess of the ordinary hours on
any day or shift prescribed in clause 13—Ordinary hours of work are to be paid as follows.’
[13] Ai Group submits that while clause 10.4(b) may need to be amended to reflect the
outcome of common issue proceedings, 10.4(b) is a clause it has sought to vary in Matter
AM2020/1 and the approach taken may be affected by the outcome of those proceedings.9
[14] Ai Group submits the amendment to clause 28.1(a) proposed by the ANMF does not
raise any difficulties.10
[15] The changes flowing from the determination issued by the Overtime for Casuals Full
Bench were not incorporated into the draft variation determination published on 5 November
2020 as the determination issued by the Overtime for Casuals Full Bench was not operative at
that time. These changes will now be incorporated in the draft variation determination. Any
subsequent variation made by the Full Bench dealing with AM2020/1 will also be
incorporated.
Incorrect rates of pay in Schedule B
[16] The ANMF submits11 that the rates of pay in the new provision, Schedule B, are
incorrect with respect to casual employees. It submits that the correct approach is that taken
by the Full Bench in Australian Nursing and Midwifery Federation v Domain Aged Care
(QLD) Pty Ltd T/A Opal Aged Care12 which was endorsed by another Full Bench in the
October ‘overtime for casuals’ decision.13 In Domain Aged Care the Full Bench said:
‘When a casual employee works ordinary hours on a Saturday or Sunday, clause 26 of the
Award requires the weekend loading to be applied to the ordinary rate of pay. For casual
employees, this rate is the casual rate. The same is the case with the public holiday penalty in
clause 32.1.’14
[17] The ANMF submit that Schedule B was a clause identified by it and Ai Group as one
relating to AM2020/1. Schedule B has only been updated to factor in the Annual Wage
Review 2019-20, and does not reflect the approach to casual loadings endorsed by the
Overtime for Casuals Full Bench in the October decision.15
9 Ai Group Submission 30 November 2020 at [8]-[12]
10 Ibid at [13]
11 ANMF Submission 19 November 2020 at [7]-[18]
12 [2019] FWCFB 1716
13 [2020] FWCFB 5636
14 [2019] FWCFB 1716 at [17]
15 ANMF Submission 19 November 2020
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-191120.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb1716.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5636.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb1716.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-191120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aigroup-301120.pdf
[2020] FWCFB 6499
4
[18] The ANMF submits if the Full Bench is inclined to publish the final determination
with Schedule B incorporated then the rates must be corrected to reflect the status quo. It says
that unless the decision in AM2020/1 changes the Nurses Award then the status quo is that
weekend penalties and public holiday penalties are compounded when worked by an
employee receiving the casual loading as ‘the ordinary rate for casuals is the loaded rate’.16
[19] The ANMF did not include the overtime rates for casuals in Schedule B on the basis of
its understanding that this is a separate issue which will be dealt with by the Full Bench in
Matter AM2017/51 in due course.
[20] Ai Group disputes that the approach adopted by the ANMF reflects the proper
interpretation of the current provisions of the award relating to the calculation of rates.17 Ai
Group said it would seek to be heard further in relation to the matter if the Full Bench intends
to determine this issue in the course of settling the terms of Schedule B. Ai Group also states
the issue is clearly a matter related to AM2020/1 and will potentially be impacted by any
decision in those proceedings. It therefore submits Schedule B should not be included in any
final variation determination prior to the resolution of AM2020/1.18
Issuing the final variation determination
[21] Ai Group submits that the Commission should refrain from issuing a final variation
determination prior to the resolution of AM2020/1 and notes that the ANMF do not oppose
this course. Ai Group raises the following concerns with the Commission issuing a final
variation determination prior to the determination of AM2020/1:
the possibility the determination would vary clauses in the award that were not the
subject of proposed variations advanced in AM2020/1, but which were nonetheless
referred to in argument in those proceedings as contextual considerations relevant to
the proper construction of certain contentious provisions and/or the existence of
ambiguity or uncertainty in the terms if the award. Ai Group submits this may then
impact upon whether the jurisdictional fact of an ambiguity, uncertainty or error
could be said to exist so as to permit a variation to the Award pursuant to s.160 of
the Fair Work Act 2009;
the approach of replacing the current terms of the Award with the contents of the
proposed schedule (as opposed to simply not altering provisions relevant to
AM2020/9) may alter the capacity of a party to press an argument that it contains an
error, as contemplated under s.160 and asserted by the Employer parties in
AM2020/1; and
that the Commission may not have power to vary a final determination once issued
as it cannot identify any provision in the Act that expressly affords the Commission
a power to vary an issued variation determination.19
16 ANMF Submission 19 November 2020
17 Ai Group Submission 30 November 2020
18 Ibid at [16]-[18]
19 Ibid at [19]-[26]
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aigroup-301120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aigroup-301120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aigroup-301120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-191120.pdf
[2020] FWCFB 6499
5
[22] ABI also note that numerous clauses may be affected by the forthcoming decision in
AM2020/1 and would like the opportunity to provide further comment on any amendments
made.20
Next steps
[23] In light of the parties’ submissions we do not propose to issue the final variation
determination for the Nurses Award at this time. We will await the decision of the Full Bench
in AM2020/1.
[24] Interested parties will be provided with an opportunity to comment on the revised draft
final variation determination which will incorporate the determination issued by the Full
Bench in AM2017/51 and any determination issued by the Full Bench in AM2020/1.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR725116
20 ABI and NSWBC Submission 19 November 2020
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-abinswbc-anor-191120.pdf
