[2012] FWA 9420 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Aged Care Association Australia Ltd & Others
Australian Nursing Federation
Australian Business Industrial
(AM2012/88, AM2012/132 and AM2012/169)
Health and welfare services | |
VICE PRESIDENT WATSON |
SYDNEY, 14 NOVEMBER 2012 |
Modern awards review - application to vary the Nurses Award 2010.
Introduction
[1] This decision concerns applications by the Aged Care Association Australia Ltd and others 1 (the Aged Care Employers), the Australian Nursing Federation (ANF) and Australian Business Industrial (ABI) to vary the Nurses Award 20102 (the Award). The applications were made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] At the hearing of the matters Mr G. Boyce, of counsel, with Mr D. Amesbury appeared on behalf of the Aged Care Employers, Mr A. McCarthy appeared on behalf of the ANF, Ms S. Haynes appeared on behalf of ABI and Ms L. Hepworth with Ms L. Fisher appeared on behalf of the Private Hospital Industry Employer Associations (PHIEA).
[3] The combined applications raise a number of separate matters for consideration. The legislative task is the same for each matter and is set out in the following extracts.
Relevant Legislation
[4] Sch. 5, Item 6 of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
[5] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
...
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
[6] The approach to the 2012 review has been described in a Full Bench decision of 29 June 2012. 3 It is not necessary to set out the details of this decision. I turn to consider the matters requiring determination.
Uniform allowance
[7] Each of the applicants seeks a variation to clause 16.2 of the Award. Clause 16.2 reads:
“16.2 Clothing and equipment
(a) Employees required by the employer to wear uniforms will be supplied with an adequate number of uniforms appropriate to the occupation free of cost to employees. Such items are to remain the property of the employer and be laundered and maintained by such employer free of cost to the employee.
(b) Instead of the provision of such uniforms, the employer may, by agreement with the employee, pay such employee a uniform allowance at the rate of $1.23 per shift or part thereof on duty or $6.24 per week, whichever is the lesser amount. Where such employee’s uniforms are not laundered by or at the expense of the employer, the employee will be paid a laundry allowance of $0.32 per shift or part thereof on duty or $1.49 per week, whichever is the lesser amount.
(c) The uniform allowance, but not the laundry allowance, will be paid during all absences on leave, except absences on long service leave and absence on personal/carer’s leave beyond 21 days. Where, prior to the taking of leave, an employee was paid a uniform allowance other than at the weekly rate, the rate to be paid during absence on leave will be the average of the allowance paid during the four weeks immediately preceding the taking of leave.”
[8] The ANF application seeks to vary clause 16.2(b) to remove the words “by agreement with the employee”. The ANF submits that the proposed variation will remove uncertainty or ambiguity and ensure employers who require employees to wear a uniform either provide the employee with a uniform or pay the uniform allowance. The ANF relies on proceedings initiated in the Federal Magistrates Court to demonstrate the potential for disputes over the current wording.
[9] ABI submits that the variation proposed by the ANF is unnecessary. It submits that the clause is clear that where a uniform is required to be worn and the employee’s agreement is not obtained to pay the allowance instead of providing the uniform, then the uniform must be provided by the employer.
[10] The PHIEA supports the proposed variation and the Aged Care Employers do not oppose this variation.
[11] The intent of the clause is not in dispute. It is clearly intended to impose an obligation on the employer to supply uniforms or pay the allowance. The employer is clearly intended to have the choice as to which option to adopt. I agree that the words “by agreement with the employee” are unnecessary and could give rise at least to confusion and possibly attempts to bypass the obligation by obtaining agreement that no benefit be provided. Such an outcome is clearly not intended. I will make a determination deleting these words.
[12] The Aged Care Employers and ABI applications seek to vary clause 16.2(c) of the Award by inserting the word “paid” before the word “leave” to clarify that the payment of the uniform allowance occurs only when an employee is on paid leave and not during periods of unpaid leave.
[13] The Aged Care Employers submit that the absence of the word “paid” creates and anomaly and is ambiguous and uncertain. It submits that a uniform allowance is an expense related allowance and not an all purpose allowance. It submits that the variation proposed is consistent with the terms of clause 15.2(c) (the uniform allowance clause) in the Aged Care Award 2010 4 (the Aged Care Award).
[14] ABI supports the submissions of the Aged Care Employers. The PHEIA support the variation. The ANF submits that the change is unnecessary; the allowance is justified during leave because it covers the cost of purchase and replacement not only laundering. In the alternative the ANF submits that the exception regarding paid leave should be removed.
[15] On 11 October 2010 in a decision on transcript in relation to an application to vary the Aged Care Award in similar terms under s.160 of the Act, I said:
“I consider there is a potential ambiguity or uncertainty associated with the operation of clause 15.2(c) of the Aged Care Award 2010 insofar as it might be contended that the uniform allowance is paid for periods of unpaid leave. Such a consequence in my view would be quite incongruous given that other payments would not be payable during those periods of unpaid leave, but the wording of that clause may be subject to an interpretation to that effect, although in my view the preferable interpretation clearly is that for unpaid leave no payments would be made of any sort, whether they be wages or allowances. I will make a determination varying the award by inserting the word “paid” on the second line before the word “leave” and I will provide that that variation have effect from 1 January 2010.”
[16] For the same reasons I believe that a potential ambiguity arises with respect to this award. When employees are on unpaid leave they do not of course receive wages. For long absences on paid leave the allowance cuts out. This appears to me to confirm that the allowance is intended to cover the costs of laundering and replacement arising from usage. There is no usage during unpaid leave. In my view a similar variation to that made with respect to the Aged Care Award would clarify the meaning that I believe was intended by the clause. I will make a determination making the variation sought.
Meal allowance
[17] The Aged Care Employers seek to vary clause 16.3(a)(i) by inserting the word “overtime” to confirm that meal allowance is paid when overtime is worked. The clause currently states:
“16.3 Meal allowances
(a) An employee will be supplied with an adequate meal where an employer has adequate cooking and dining facilities or be paid a meal allowance of $11.37 in addition to any overtime payment as follows:
(i) when required to work after the usual finishing hour of work beyond one hour or, in the case of shiftworkers, when the overtime work on any shift exceeds one hour.
(ii) provided that where such overtime work exceeds four hours a further meal allowance of $10.24 will be paid.
(b) Clause 16.3(a) will not apply when an employee could reasonably return home for a meal within the meal break.
(c) On request the meal allowance will be paid on the same day as overtime is worked.”
[18] The ANF opposes the variation. It submits that the clause is not ambiguous and justifiably applies to part time nurses who work longer than their nominated hours, even if the additional hours are not paid at overtime rates.
[19] The clause is clearly subject to different interpretations, specifically in relation to part time employees who work additional hours that are not overtime. In my view meal allowances in awards are typically an incidence of working overtime and are often provided for in overtime clauses. Further, in my view the wording of the clause at the moment presupposes the working of overtime and the allowance is expressed as an amount additional to overtime payments. In my view the intention is that it should be confined to circumstances when overtime is worked and the proposed variation merely clarifies this situation. I will make the variation.
Nurse in charge allowance
[20] The ANF seeks the following clause:
“16.7 Nurse in charge allowance
A Registered Nurse Level 1 or a Registered Nurse Level 2 directed by the employer to take charge of a health unit, on a Saturday, Sunday, public holiday, or between the hours of 6.00 pm and 8.00 am on any day will:
(a) If in charge of a worksite of 100 beds or greater, be paid an allowance of $36.00 per shift.
(b) If in charge of a worksite of less than 100 beds, be paid an allowance of $21.50 per shift.”
[21] The change is sought in order to compensate the senior nurse who may be in charge of a health unit at night or a on a weekend or public holiday. The ANF submits that the additional responsibilities taken on in those circumstances are significant and are not taken into account in the minimum award wage for the relevant classifications.
[22] The Aged Care Employers and other employer representatives submit that this matter was addressed in the award modernisation process, in-charge allowances were sought by the ANF and the Full Bench deliberately refrained from inserting them. They further submit that supervisory functions of the type concerned are already built into the nurse classification definitions. They submit that if additional remuneration is justified it should be based on the precise circumstances in enterprise specific arrangements. As units vary considerably in their size and complexity it is submitted that it is inappropriate to adopt a uniform approach to the allowance in a safety net award.
[23] I do not consider that a case has been established for inserting this allowance. The matter was addressed in the award modernisation process. In my view, in an award such as this with wide-ranging application, there are sound reasons for leaving matters of this nature to the agreement or overaward area where the precise circumstances can be considered and appropriate compensation can be given to the extent that it is agreed to be warranted. I will not make the variation sought.
Ordinary hours of work
[24] Clause 21.4 provides for employees to be free from duty for not less than two full days each week, four full days each fortnight or eight full days each 28-day cycle. The ANF seeks the insertion of a definition of “full day” in clause 21.4 as follows:
““full day” means from midnight to midnight or midday to midday.”
[25] The change is based on the wording of the superseded NSW NAPSA’s 5 and reflects the ANF objective that shift workers receive more than 48 hours off duty as Monday to Friday day workers do. Employers oppose the application. They say the clause is not ambiguous but the proposed variation will introduce ambiguities.
[26] Limitations of this nature are not common in modern awards despite the fact that shiftwork is a feature of many industries. Indeed the usual limitation is that employees should not be required to work more than one shift in 24 hours, and ordinary hours are subject to weekly and other limitations. I do not consider that the change is necessary to achieve the modern awards objective. Further, the impact of its application is uncertain, especially in the case of rotating shift rosters or employees who may work an irregular shift pattern. In my view the current provision is appropriate.
[27] The Aged Care Employers seek a change to clause 21.5 by deleting the word “day” and inserting the word “shift” instead. The clause currently requires hours to be continuous on any day. It is submitted that the current provision creates problems for night shifts that commence at 11.00 pm or otherwise straddle midnight as the hours on a particular calendar day will not be continuous.
[28] The ANF opposes the change as it believes that the variation may give rise to attempts by employers to roster multiple shifts on a single day.
[29] It is common for modern awards to require rostered hours to be worked continuously, (except for meal breaks) often without any accompanying period specified. Broken shifts are an exception to this principle in some industries where there is an operational need. I do not believe that the provision was intended to preclude a night shift worker finishing a shift at 7.00 am and commencing another shift on the same day at 11.00 pm. Nor do I consider that the Award should permit multiple shifts being rostered on the same day so as to achieve broken shifts by proxy. In order to accommodate these two objectives, and having regard to the provisions of other modern awards, I propose to insert the following provision in lieu of current clause 21.5:
“21.5 The hours of work will be continuous, except for meal breaks. Except for the regular changeover of shifts, an employee will not be required to work more than one shift in each 24 hours.”
Casual loadings and weekend penalties
[30] Aged Care Employers and ABI seek to insert a new clause 26.3 as follows:
“26.3 Casual employees will be paid in accordance with clauses 26.1 and 26.2. The rates prescribed in clauses 26.1 and 26.2 will be in substitution for and not cumulative upon the casual loading prescribed in clause 10.1(b).”
[31] The intention of the clause is to clarify that the loadings for Saturday and Sunday work are in substitution for and not cumulative on the casual loading in clause 10. It was argued that the current meaning is ambiguous and the intended meaning is consistent with the proposed variation. The employers did not seek to argue that the change was justified in any event.
[32] The ANF asserts that casual employees are currently entitled to the casual loading and the relevant weekend loadings and the variation will alter the legal effect of the clause.
[33] No party sought to advance a case for alteration of the current meaning and intent of the Award. Rather, they simply argued for clarification in line with their respective interpretations, which are diametrically opposed. It is therefore necessary to have regard to the current meaning of the provisions in determining whether the justification advanced has merit.
[34] Casual employees are paid an hourly rate of 1/38th of the weekly rate plus a casual loading of 25%: clause 10.4(b). Clause 10.4(d) states:
“(d) A casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.”
[35] In my view, in the case of more than one loading applying, these provisions do not require the penalty to be calculated as a percentage of the loaded rate. Rather they require a calculation of each penalty on the base rate and the addition of the derived amounts onto the base rate. This reflects the normal notion that multiple penalties are often required to be applied, but that penalties are not applied on penalties.
[36] Clause 10.4 however only refers to shift penalties. Shift penalties are provided for in clause 29.1. Clause 29.1(e) provides:
“(e) The shift penalties prescribed in this clause will not apply to shiftwork performed by an employee on Saturday, Sunday or public holiday where the extra payment prescribed by clause 26—Saturday and Sunday work and clause 32—Public holidays applies.”
[37] The loadings for Saturday and Sunday work in clause 26 are expressed to be applicable to “an employee” and calculated on the basis of their ordinary rate of pay. There is no exclusion of casual employees from the entitlement to receive weekend penalties. It is not disputed that casual employees are entitled to shift penalties for shiftwork and weekend penalty payments on weekends. The disagreement concerns the status of the casual loading on weekends. In my view there is no basis in the Award to exclude the application of the casual loading on weekends and therefore it continues to apply when a casual works on a weekend. The loading is not however applied to the loaded weekend rate. In my view the same method of calculation applies to weekends as in the case of shift allowances. Each penalty is calculated on the base rate. The resultant amounts are added together.
[38] It follows that the justification advanced by the employers is not valid and their case must fail.
Meal breaks
[39] The ANF seeks a variation to clause 27.1 by adding the following words in bold to the existing clause:
“(a) An employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes which will be taken between the fourth and sixth hour after commencing work.
(b) Where an employee is required to remain available or on duty during a meal break, the employee will be paid overtime for all time worked until the meal is taken.”
[40] The ANF contends that it has frequent calls from members about their inability to access meal breaks because of work commitments. It submits that the current wording of the clause contributes to this situation because it does not mandate a time by which the break must be given.
[41] The employers contend that a similar claim was made and rejected during the award modernisation process. They contend that the claim is a further restriction on rostering that removes the flexibility that operates around operational needs and employee preferences. They submit that any further issues about the timing of meal breaks should be dealt with at the enterprise level. The employers accepted that the current award provision requires a meal break to be provided, either by rostering it or otherwise, and if the employer requires the employee to work through the meal break, it must pay the employee at overtime rates until a meal break is given.
[42] In my view the employers have correctly acknowledged the obligations under the Award. Any practice whereby an employee is not provided with a meal break must result in overtime payments being made until the scheduled meal break is given. A small amount of give and take based on operational requirements is understandable, but a failure to provide a break, or overtime payments until the end of the shift would not be consistent with the intent of the clause. Nevertheless, I do not consider that a case has been made out for regulating the time for the meal break in the way proposed by the ANF. Such an approach would inhibit the existing flexibility which is no doubt necessary in many operations covered by this Award. The clarification of obligations in this decision and the availability of the disputes procedure should assist in the event of further difficulties with regard to meal breaks.
Classification definitions
[43] The ANF application seeks two variations to the classifications within Schedule B of the Award. The first is to replace references to state and territory registration boards with references to the “Nursing and Midwifery Board of Australia”. The ANF submits that a national registration scheme has been established and nurses and midwives are required by law to be registered with the Nursing and Midwifery Board of Australia (NMBA). It submits that the proposed variations are consistent with the modern awards objective. The PHIEA supports the variation and it is not opposed by the Aged Care Employers or the Australian Day Hospital Association (ADHA).
[44] ABI submits that the variation proposed by the ANF is necessary to keep the Award relevant and up to date. It suggests additional wording be inserted to avoid applications to update the award in the future.
[45] I will make the variation sought.
[46] Secondly the ANF seeks to amend the definition of enrolled nurse at pay point 2, by inserting reference to diploma and advanced diploma qualifications. It submits that the proposed variation will update the existing clause in line with current qualifications required to be registered as an enrolled nurse. It submits that the variation is necessary to achieve the modern awards objective particularly that of ensuring that modern awards provide a fair and relevant safety net of terms and conditions.
[47] The PHEIA supports this variation. ABI supports this variation, however contends that the operative date of this variation should be the date the regulatory changes take effect, being 1 July 2014. The variation is not opposed by the Aged Care Employers or the ADHA.
[48] I will make the variation sought. The date of effect of the variation will be 1 July 2014.
Other Matters
[49] The following matters that were part of original applications are no longer pressed by the applicant:
[50] The following matters which formed part of the ANF application in these matters are being dealt with by a Full Bench:
[51] The review of this award will not be finalised until the Full Bench matters are dealt with.
VICE PRESIDENT WATSON
Appearances:
G. Boyce, of counsel with D. Amesbury for the Aged Care Employers
S. Haynes for ABI
A. McCarthy for the ANF
L. Hepworth with L Fisher for the Private Hospital Industry Employer Associations
Hearing details:
2012.
Melbourne.
27, 28 September.
1 The application is a joint application by the Aged Care Association Australia Ltd, Aged Care Association - SA Inc, Aged & Community Services Australia - WA, Aged & Community Services Australia, Aged Care Association Australia - New South Wales, Aged Care Queensland, Aged & Community Care Victoria, Aged & Community Services SA & NT Inc, Aged & Community Services Tasmania and the Aged Care Association Australia - WA.
5 AN120387 - Nursing Homes, & C., Nurses’ (State) Award and AN120435 - Private Hospital Industry Nurses’ (State) Award.
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