| [2020] FWCFB 5883 |
| FAIR WORK COMMISSION |
DECISION |
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 |
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 decision 2 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 Statement 3 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.
[5] In a further decision issued on 27 April 2020 4 (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.
[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 2020 6 (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 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 2019-20 9 (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.
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>
5 [2020] FWCFB 2124 at [325] - [331]
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.
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