| [2021] FWCFB 2800 |
| 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)
Health and welfare services | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 18 MAY 2021 |
4 yearly review of modern awards – finalisation of Exposure Drafts and draft 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. This decision deals with the finalisation of the variation determination for the Nurses Award 2010 (Nurses Award).
[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 and 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 affected 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 was reserved. A draft variation determination was published concurrently with the November 2020 Decision.
[4] In a statement issued on 4 December 2020 (December 2020 Statement), 2 after considering the submissions of the parties filed in response to the November 2020 decision, we determined not to publish a final variation determination for the Nurses Award until the claims in matter AM2020/1 had been determined.
[5] A decision in matter AM2020/1 was issued on 13 January 2021 (January 2021 decision). 3
[6] In the January 2021 decision, the Full Bench dismissed Australian Industry Group’s (Ai Group) application and the terms of the Nurses Award were not varied. We deal with that decision below.
[7] As foreshadowed in the December 2020 Statement 4 we will now publish a revised draft final variation determination with the following further amendments since last publication (on 5 November 2020).
Matter AM2020/1
[8] In dismissing the Ai Group application in AM2020/1, the Full Bench in the January 2021 decision confirmed that overtime, weekend and public holiday rates payable to casual employees under the Nurses Award are calculated on a base hourly rate that includes the casual loading (Compounding Basis). 5
[9] Given the decision of the Full Bench in AM2020/1, we have decided to revert the following affected clauses, back to the wording contained in the Exposure Draft published immediately prior to the 5 November 2020 draft, as these clauses were not varied by AM2020/1. The relevant clauses, as reviewed throughout the Review process, will be reinserted.
[10] The relevant clauses are:
• 11.2 and 11.5—casual employees; 6
• 19.1(a)(i)-(iii)—overtime penalty rates; 7
• 21—Saturday and Sunday work; 8 and
• 28.2(a)—payment for work done on public holidays. 9
[11] We have made a number of changes to the revised draft variation determination in light of the January 2021 decision as follows:
• inserted a definition of “casual hourly rate” in clause 2—Definitions;
• inserted the words “This is the casual hourly rate” in clause 11.2;
• inserted a new clause 11.3 as follows: “When a casual employee works overtime, they must be paid the overtime rates in clause 19.2”;
• deleted the words “and Saturday and Sunday rates” appearing in clause 11.5;
• the heading of clause 19.1 has been amended to “Overtime rates – full-time and part-time employees”. The words “by full-time and part-time employees” has been inserted after the words “Hours worked” in clause 19.1(a);
• a new clause 19.2 has been inserted to specify the compounding rates for casual employees working overtime;
• the ‘time off instead of payment for overtime’ example in clause 19.3(b) has been amended to include overtime payments for casual employees;
• clause 21 has been amended to include reference to casual hourly rates;
• clause 28.2 has been amended to include reference to casual hourly rates; and
• the terminology and rates in Schedule B have been amended to refer to ‘casual hourly rate’ and a footnote reference to ‘casual hourly rate’ has been inserted.
Interaction with Matter AM2017/51 – Overtime for Casuals
[12] On 30 October 2020, the Overtime for Casuals Full Bench (AM2017/51) issued a determination 10 varying the Nurses Award in accordance with its decisions of 18 August 2020 and 30 October 2020.11 One amendment has been made to the Exposure Draft and draft variation determination in accordance with the Overtime for Casuals decisions.12 The word “ordinary” has been inserted into the first sentence of clause 11.2 so that the clause reads “For each ordinary hour worked, a casual employee must be paid”.
December 2020 Statement
[13] In the December 2020 Statement we noted that the following inconsistencies appear in terminology used for shiftwork loadings in the following clauses: 13
• clause 11.5 (previously 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’.
[14] We determined that the terminology at clauses 11.5 and 19.1(c) would be changed to ‘shiftwork loadings’ in the revised Exposure Draft and revised draft variation determination.
[15] A number of minor errors and drafting amendments have also been made to the Exposure Draft and draft variation determination. 14
Next steps
[16] There are no other outstanding technical and drafting matters in relation to the Nurses Award. In a decision published on 29 January 2020 15 (January 2020 decision), we expressed the provisional view that the variation of the modern awards in Tranche 3 in accordance with the draft variation determinations set out at Attachment C of that decision (which included the Nurses Award) was necessary to achieve the modern awards objective. In reaching that conclusion we adopted the reasons set out in the decisions at Attachment B to the January 2020 decision insofar as they are relevant to the Nurses Award and, in particular, to the considerations in ss.134(1)(a) to (h), which are addressed in each of those decisions. This provisional view is now subject to the amendments we have detailed in this decision.
[17] A revised Exposure Draft and revised draft variation determination will be issued with this decision in the terms previously published, subject to the amendments set out above.
[18] Interested parties will have until 4.00 pm on Tuesday 8 June 2021 to file any comments on the revised Exposure Draft and revised draft final variation determination. Any submissions in reply are to be filed by Tuesday 22 June 2021. All comments must be sent electronically to amod@fwc.gov.au. This process is intended to provide an opportunity to comment on the changes made as a result of this decision and to correct any errors. It is not an opportunity to relitigate the issues which have already been determined.
[19] We propose to finalise the revised variation determination on the basis of the written submissions filed. All submissions are to be sent to AMOD in word format.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<MA000034 PR729894>
4 [2020] FWCFB 6499 at [23].
5 [2021] FWCFB 115 at [43]-[44].
6 Clause 11.2 reverted in full and 11.5 reverted in full with amendment as set out in this decision.
7 References to time and a half, double time and double time and a half reverted to previous exposure draft wording.
8 Reference to “a loading of the … ordinary rate of pay” amended to “… of their minimum hourly rate” for consistency in terminology.
9 Reference to “double time of their ordinary rate of pay” amended to “200% of the minimum hourly rate” for consistency in terminology.
11 [2020] FWCFB 4350; [2020] FWCFB 5636.
12 [2020] FWCFB 5636 and PR723938.
13 [2020] FWCFB 6499 at [9]
14 Definition of ‘ADO’ in clause 2—Definitions amended to ‘means accrued day off.’; inserted a colon at the end of the first sentence of clause 15.7(b); clause 17.1(a) moved above NOTE and renumbered as clause 17.1 and wording “The following allowances” amended to “Allowances under clause 17”; “Overtime penalties” amended to “Overtime rates” in clause 19.1(b); cross reference in clause 19.8 amended from ‘clause 17.2’ to ‘clause 17.2(a)’; the word “clause” inserted in the third dot point of clause A.2; comma inserted between the words ‘access to’ and ‘a more competent registered nurse’ in clause A.5.1(a)(ii); reference to ‘minimum hourly rate’ has been changed to ‘casual hourly rate’ with the compounding rates for casual employees in clauses B.1.3, B.2.3, B.3.3, B.4.3 and B.5.3 also inserted; replaced ‘Meal allowances—overtime–further 4 hours’ in clause C.2.1 with ‘Meal allowances—further meal allowance where overtime exceeds 4 hours’; Replaced “29 March 2021” with “31 December 2021” in clauses X.2.1(d) and X.2.2(c); Schedule Y deleted in accordance with PR728137.
15 [2020] FWCFB 421 at [6].