[2013] FWC 4713 |
FAIR WORK COMMISSION |
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
Nicole Cheek
(AM2012/11)
Australian Veterinary Business Association
(AM2012/67)
Australian Veterinary Association
(AM2012/217)
Veterinary Nurses Council of Australia
(AM2012/257)
ANIMAL CARE AND VETERINARY SERVICES AWARD 2010
(ODN AM2008/82) [MA000118]
Animal care and veterinary services | |
COMMISSIONER ROBERTS |
SYDNEY, 22 JULY 2013 |
Review of the Animal Care and Veterinary Services Award 2010.
[1] This decision concerns separate applications by the Veterinary Nurses Council of Australia (the VNC), the Australian Veterinary Business Association (the AVBA), the Australian Veterinary Association (the AVA) and Ms N Cheek to vary the Animal Care and Veterinary Services Award 2010 (the Veterinary Award). The applications are made under Schedule 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 (now the Fair Work Commission) is required to conduct after the first two years of those modern awards coming into effect (the 2012 Review).
[2] The applications were listed for mention and directions on 8 August 2012. No interested party wished to attend the proceedings on 8 August 2012 and I subsequently issued Directions on 28 November 2012 for the filing of submissions and any witness statements. That process was to conclude on 15 February 2013. The applications then came on for hearing on 22 February 2013.
[3] Ms D Neutze and Ms K Cahill appeared for the AVA, Ms P Stuckey-Clarke appeared for the Australian Federation of Employers and Industries (the AFEI), Ms K Dillon appeared for the AVBA and Mr H Wallgren appeared for the South Australia Employers Chamber of Commerce and Industry trading as Business SA (Business SA).
[4] Written submissions were received from the AVBA (Exhibits AVBA 1 and AVBA 2), Business SA (Exhibit BSA 1) and the AFEI (Exhibit AFEI 1).
The legislation
[5] Schedule 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).”
[6] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 of the Act provide 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.”
[7] As one of the applications before me relates to modern award minimum wages, the minimum wages objective is also relevant. Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWA must establish and maintain a safety net of fair minimum wages, taking into account:
(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
[8] On 29 June 2012, the 2012 Review Full Bench published a decision in relation to the 2012 Review 1. The Full Bench said:
“[63] Under subitem 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, subitem 6(4) provides that in making such a variation the Tribunal must take into account the modern awards objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284. “
[9] The Full Bench went on to say:
“[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.”
......
[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
‘When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.’
[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coal Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:
‘There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.’
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.” [References omitted]
[10] The Full Bench said in relation to the application of section 138 of the Act to the 2012 Review:
“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review.”
[11] I now turn to consideration of each of the application.
Application by Ms Cheek
[12] Ms Cheek’s application sought to vary the Award in the following manner:
“Clause 14.1 Minimum Wages Veterinarians - 10% increase in Level 1 and 1B, 20% increase in Level 2 and 3 and 30% increase in Level 4.
Clause 16.1(b) Veterinary On Call - replace active on call at hourly rate with 50% professional fees which include all fees charged to clients (consult, drugs, surgery time, xrays, fluids, hospitalisation) or double time and a half with minimum one hour pay, whichever is greater.
Clause 16.1(b) - change on call amount from 5% of standard rate to ‘15% of their daily rate’.
Clause 25 - increase penalty rates for hours worked between 6 pm and midnight, Monday to Friday to 15%, Midnight and 8 am, Sunday to Friday to 30%, Midnight Friday and midnight Saturday to 50%, Midnight Saturday and midnight Sunday to 100%.
Remove all use of ‘standard rate’ and replace with ‘their daily rate’.
Clause 16.2 - remove ‘Other than veterinary surgeons’ to allow veterinarians to revived Meal allowances and First aid allowances. For veterinarians, add ‘No broken shifts shall be worked’ and ‘A minimum of three hours wage will be paid for all shifts’.
Clause 22.3(a) - remove ‘except for active on call duty’.
Clause 23.1 - add ‘Employers should provide procedures for recording time worked during meal breaks and if veterinarians are required to work in a meal break they must be paid double rates for this time’.
Clause 24.1 - change from normal pay rate to ‘Overtime shall be at the rate of one and a half the normal pay rate for the first two hours and double for the remaining hours and all Sunday overtime shall be at double rates with a minimum of three hours overtime pay’ and ‘All time worked in excess of 10 hours for any shift will be paid as overtime’.
Clause 24.3 - remove ‘other than veterinary surgeons’ to allow veterinarians payment if return to duty is required.
Clause 26 Annual Leave - add ‘Veterinarians who work Sunday or Public Holiday shifts exceeding 8 hours will receive an extra 1 hour leave for each such shift.’
Clause 29.2 - add for veterinarians ‘Public holidays shall be paid at double and a half the normal pay or equivalent time in lieu’.
B1.4 Level 3 Veterinarians - add ‘Veterinarians with 3 years experience may be considered for this level and some may reach this level earlier’.
B1.5 Level 4 Veterinarians - add ‘All veterinarians with Memberships to the Australian & New Zealand College of Veterinary Scientists, a Masters degree, or 5 years experience in the field of employment may be considered for this level and some may reach this level earlier’.
Add ‘Veterinary students during rotations who attend more than 38 hours per week should be considered for pay under minimum wages for animal assistants. Penalty rates as per Clause 25 and Overtime rates as per Clause 24.1 should also be considered.’”
[13] Ms Cheek provided the following grounds in support:
“Veterinarians are at the forefront of animal health, animal welfare and public health. They protect Australia’s livestock food security, provide biosecurity against human diseases with 75% of these developing from animals, and promote human-animal bonds through companion animal care. The minimum wages (section 14.1 of Award) are exceedingly low considering the level of debt and non-income university years required. When compared with other courses it is one of the least attractive return on investments (Comparecourses). Mental health problems such as suicide and depression are high within the profession and research links this with several causes including low remuneration (Bartram, 2010; Fairne, 2005). Current trends suggest that working conditions provided to veterinarians will continue to deteriorate (Heath, 2007). With the rising cost of living in Australia it is becoming financially difficult for veterinarians to support a family and pay for continuing professional education/professional memberships which are vital in a field here veterinary medicine knowledge doubles every three years. Improvements in veterinary working conditions will have positive flow on effects with increased business productivity and a greater contribution to the animal sector economy. It is to avert these negative trends, improve the career satisfaction of veterinarians and allow them to provide a higher standard of veterinary care that we suggest these changes.
Create separate award for Veterinarians similar to Medical Practitioners Award. The education and duties of veterinarians vary significantly from practice managers, veterinary nurses, receptionists, animal attendants and assistants. It therefore causes conflict of interests when these employees are included within the same award.”
[14] Ms Cheek did not file any material in addition to her original application and my consideration has therefore been limited to explanatory material which Ms Cheek included with her application.
[15] Submissions in support of Ms Cheek were received from Mr T White (on behalf of the Australia Veterinarian Network), Ms J Gillespie and Ms D Whatling.
[16] Business SA, the AVBA and the AFEI opposed Ms Cheek’s application primarily on the ground that the variations to the Award as sought by her were outside the scope of this mid term review.
[17] I have noted the various submissions relating to Ms Cheek’s application, both for and against. The application seeks to make fundamental changes to the Award and much of it, such as changes to wage rates, is beyond the scope of this mid term review. The application also lacks supporting evidence and Ms Cheek did not appear at proceedings on 22 February 2013. The material set out in her application itself or supporting submissions from others is not sufficient.
[18] Ms Cheek’s application is dismissed.
Applications by the AVBA and the VNCA
[19] The AVBA’s application identified an alleged anomaly in the Award, specifically in the Level 5 classification applying to Practice Managers. The current definition of a Level 5 employee includes a requirement that such an employee will “possess a Diploma in Veterinary Nursing”. The AVBA seeks to delete that requirement.
[20] The VNCA’s application sought the same variation as that of the AVBA but additionally sought a further variation to include Accredited Veterinary Nurses in the Level 5 classification.
[21] In its application, the VNCA set out the grounds it relied upon. Apparently, to achieve recognition as an Accredited Veterinary Nurse, a person must fulfil certain criteria and have their name entered onto a register held by the VNCA and the AVA.
[22] In its written submissions, the AVBA included the following argument in favour of its proposal and in relation to the VNCA application:
“Currently, the Level 5 classification relates only to Practice Managers and requires that such employees possess a Diploma in Veterinary Nursing and have overall day-to-day management of a veterinary practice.
The Veterinary Nurses Council of Australia (VNCA) has submitted that employees who hold a Diploma in Veterinary Nursing but are not Practice Managers should still be classified at Level 5 and that the requirement for Practice Managers to hold a Diploma in Veterinary Nursing be removed. The AVBA has previously made a similar submission. The VNCA has also submitted that Level 5 should specifically include Accredited Veterinary Nurses (AVN).
The AVBA supports the submission to amend the Level 5 classification outlined above save for the proposition that the Level 5 classification should include AVNs. The AVBA has no objection to FWA considering the inclusion of AVNs in the Level 5 classification.”
[23] The AFEI supported the AVBA’s proposal and noted that the applications by the AVA and, in part, by the VNCA contained a similar proposal. In it written submissions, the AFEI said:
“None of the further submissions concerning the Practice Manager classification in the final ACVSA urged the Commission to adopt a requirement for a Practice Manager to hold diploma qualifications and this requirement was not based on pre modern award instruments.
As a consequence, a Practice Manager who does not have diploma qualifications is not covered by the ACVSA classifications and potentially award free. The submissions by the AVA and others indicate that it is not necessary for a Practice Manager to hold a Diploma qualification and most Practice Managers do not have it.”
[24] The AVA supported the proposed variation submitted by the AVBA. Essentially, it was the AVA’s argument that the role of Practice Managers does not require a Diploma of Veterinary Nursing.
[25] Schedule B - Classification of the Award provides at B.2.6:
“Level 5—Practice manager
A Level 5 employee will:
(a) possess a Diploma in Veterinary Nursing;
(b) have the overall responsibility of managing the day-to-day operations of a veterinary practice. The possession of relevant post secondary qualifications may be appropriate but are not essential.
Employees at this level are subject to broad guidance or direction and are responsible and accountable for their own work.
Level of responsibility, skills and knowledge
An employee at this level will: exercise skills, discretion and responsibilities beyond that required at Level 4.
Indicative Tasks
In addition to those outlined in Level 4, typical activities at this level may include:
(a) overseeing human resources, stock control, clinical administration, bookkeeping and customer management;
(c) being responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, including, scheduling workloads, resolving operations problems, monitoring the quality of work produced and counselling staff for performance and work related matters; and/or
(d) reporting to management regarding accounts, staffing, legislative requirements and/or other company activities.”
[26] It is clear that on the face of the wording of B.2.6(a) and (b) that there is a conflict between the two provisions and it is further clear to me from the submissions that the requirement set out in B.2.6(a) is not conducive to the effective operation of the Award “without anomalies or technical problems arising from the part 10A Award Modernalisation process 2.”
[27] I will therefore make a determination to the effect that subsection B.2.6(a) of Schedule B of the Award be deleted.
[28] In relation to the VNCA’s application to include Accredited Veterinary Nurses in Level 5, the VNCA’s argument for doing so appears to rely on the skills and knowledge acquired by Accredited Veterinary Nurses arising from the accreditation process and subsequent continuing professional development.
[29] The VNCA application, in so far as it relates to the Level 5 issue, was opposed by the AVBA but the AVBA did not submit that the proposal was beyond the scope of this mid term review. Business SA opposed the Level 5 proposal on the basis that including Accredited Veterinary Nurses at Level 5 would breach s.150 of the Act in that to become an Accredited Veterinary Nurse, a person must be a member of the VNCA. Business SA argued that “the criteria for application ... would cause this proposed amendment to be an objectionable term as it requires membership of an industrial association in contravention of Chapter 3, Part 3-1 Division 4 of the Fair Work Act 2009 ...”
[30] It appears to me that there is merit in Business SA’s argument but in these circumstances I do not have to determine that point. As with Ms Cheek’s application, there was no appearance at the hearing by the VNCA and no submission is made apart from material in the primary application. In addition, the application does not appear to address any identified anomaly in the Award but rather seeks to deal with wage rates for certain employees. That aim does not accord with the objectives of this mid term review.
[31] The application by the VNCA is dismissed in so far as it relates to the inclusion of Accredited Veterinary Nurses at Level 5. The other part of the application relating to qualifications of Practice Managers has been dealt with in the AVBA’s application.
Application by the AVA
[32] The AVA’s application or that part of the application which this decision will deal with, sought variations to clauses 16.1 (On call duty), 16.2 (Broken shift allowance) and 19.3 (Professional development).
[33] In relation to clause 16.1 of the Award, the application sought the following variation:
“16.1 Where a veterinary associate is required to perform active On-call Duty, the amount payable under this clause will be the greater of:
(a) A percentage of ‘professional fee’ charged for the work undertaken whilst on-call, based on the following table.
(b) The veterinary associate’s hourly rate at time and a half from the time the veterinary associate leaves home, until they return home.”
[34] The application included a table listing the proposed percentages of professional fees to be paid to veterinary associates.
[35] The AVA’s application argued that:
“In 2009, when the Animal Care & Veterinary Services Award 2010 was created, the On-Call Duty Clause was modified by the AIRC in its last draft with no consultation with any of the parties to this award. None of the parties requested this modification in their submissions.
The change to this Clause has caused a lot of confusion within the profession and may have lead to some veterinarians being paid less for the work they perform while On Call Duty than prior to this award being created.
The preferred option for paying On Call Duty is the way it was handled in the previous Award - Veterinary Surgeons Award 2001.”
[36] In relation to clause 16.2(b), the application sought the following variation:
“(b) Broken shift allowance
Where an employee is required to carry out their ordinary hours of duty in more than one shift, the employee will be paid 1.60% of the standard rate, per shift so worked. This is to be paid only once per 24 hour period.”
[37] The AVA’s application argued that:
“This clause is currently quite ambiguous and does not clearly explain what ‘per shift’ means. This lack of clarification impacts how to pay the broken shift allowance. Fair Work Australia have clarified the interpretation on this to mean the allowance is paid per shift of the broken original shift, not per day.”
[38] In relation to clause 19.3 (Professional Development) of the Award, the AVA’s application argued that: “the award is ambiguous as to whether the one week’s study leave entitlement is paid out as part of an employee’s termination pay, and whether this study leave entitlement is cumulative from year to year.” The AVA sought to vary the terms of clause 19.3 as follows:
“19.3 To facilitate skill acquisition and career progression, a full-time associate is entitled to one week’s paid study leave, at the associate’s ordinary rate of pay, for each completed year of service. This leave is cumulative while employed by the same employer, but is not paid out at termination.”
[39] The application by the AVA was opposed by the AFEI except for the AVA’s proposal to amend clause 16.2(b). In support of that proposed variation, the AFEI said:
“AFEI supports the variation proposed by the AVA concerning broken shifts. The ACVSA contains ambiguity, or alternatively an error in clause 16.2(b). The current clause is open to an interpretation that the allowance is to be paid for each part of a broken shift.
The allowance adopted in the ACVSA appears to have been based on the prevailing allowance in the Animal Welfare General (NSW) NAPSA which was paid once for a day in which a broken shift was worked and which also appears to have been the highest allowance of any relevant pre modern award instrument.
An interpretation that the allowance provided by the ACVSA is to be paid for each part of a broken shift would result in a significant anomaly not only between the amount of the allowance in the ACVSA and pre modern award instruments and also other modern awards.”
[40] The AVBA opposed the proposed variation to clause 16.1 and submitted that: “The proposed increase in on-call remuneration is likely to have a significant impact on regional and rural practices.” It further submitted that any proposed increase to on-call entitlements was more properly the province of the 2014 Review. In relation to clause 16.2, the AVBA submitted that had no objection to the proposed variation if the Commission considered the matter to be within the scope of the mid term review.
[41] The AVBA submitted that the variation sought to clause 19.3 falls outside the scope of this review. It further maintained that the current wording of clause 19.3: “is consistent with the spirit and letter of other statutory obligations with regard to continuing professional development pursuant to the Veterinary Practice Act 2003. Consequently, on the basis that it is reasonable and of benefit to the industry as a whole to expect staff to complete continuing professional development each year, the AVBA objects to this submission.”
[42] In relation to the proposed variation to clause 16.1, this represents a fundamental change to the Award and as such is not within the province of this mid term review. Additionally, the proposal was not supported by any cogent evidence and the AVA did not appear at the hearing to argue its case. Accordingly, I dismiss the AVA’s application in so far as clause 16.1 of the Award is concerned.
[43] Although the AVA did not provide submissions beyond the material contained in its primary application and did not appear at the hearing, I am satisfied, largely on the submissions of the AFEI, that the variation sought to clause 16.2 is within the scope of this mid term review and will correct an identified anomaly, ambiguity or error in the Award. A determination will therefore issue to vary the Award in the terms sought by the AVA.
[44] In my view, the current wording of clause 19.3 of the Award does not show any evidence of anomaly or ambiguity. Such clauses are clearly intended to promote professional development and in my experience are never designed to provide a cumulative entitlement from year to year or to be paid out on termination. To do so would defeat the purpose of the provision. Accordingly, having discerned no anomaly or ambiguity in the current clause, I dismiss the application for the proposed variation.
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