STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Nurses Award 2010
(AM2014/207)

Health and welfare services
JUSTICE ROSS, PRESIDENT	MELBOURNE, 31 JULY 2019

Nurses Award 2010 – 4 yearly review of modern awards – exposure draft – further submission relating to payment of casual employees for work performed on Saturday and Sunday.

[1] This statement deals with a submission received on 13 June 2019 by the Australian Nursing and Midwifery Federation (ANMF). 1 The submission relates to the Exposure Draft for the Nurses Award 2010 (the Nurses Award) and a recent Full Bench decision2 in Australian Nursing and Midwifery Federation v Domain Aged Care (Qld) Pty Ltd t/a Opal Aged Care (ANMF v Opal Aged Care). The ANMF filed the submission as part of the 4 yearly review of the Nurses Award, under matter AM2014/207. The issue raised in that submission relates to the payment of casual employees for work performed on Saturdays and Sundays under the Nurses Award.

The Full Bench decision

[2] The decision in ANMF v Opal Aged Care was issued on 17 April 2019 and considers the application of the BOOT to an agreement covering nurses working in aged care facilities. The majority of the Full Bench held that the weekend penalty rates for casual employees in the Nurses Award are calculated using a compounding method rather than a cumulative method. 3

[3] The relevant clauses in the Nurses Award are clause 10.4 and clause 26. Clause 10.4 currently states:

‘10.4 Casual employment

(a) A casual employee is an employee engaged as such on an hourly basis.

(b) 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%.

(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.’

[4] Clause 26 states:

‘26. Saturday and Sunday work

26.1 Where an employee is rostered to work ordinary hours between midnight Friday and midnight Saturday, the employee will be paid a loading of 50% of their ordinary rate of pay for the hours worked during this period.

26.2 Where an employee is rostered to work ordinary hours between midnight Saturday and midnight Sunday, the employee will be paid a loading of 75% of their ordinary rate of pay for the hours worked during this period.’

[5] In ANMF v Opal Aged Care the majority said:

‘[17] Clause 10.4(b) of the Award says that a casual employee will be paid an hourly rate equal to 1/38th of the weekly wage plus a casual loading of 25%. On a plain reading of the clause, the hourly rate includes the loading; the loaded casual rate is the ‘ordinary rate of pay’. 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.

[18] Furthermore, clause 10.4(d) makes very clear that casual employees are paid shift allowances on the ordinary rate of pay ‘excluding the casual loading’, with the casual loading then added to the penalty rate of pay. No such exclusion is made in respect of other penalties. Opal contended that it would be wrong to apply the maximum expressio unius est exclusio alterius to this provision, and referred to the Full Bench decision in AMWU v Berri Pty Limited which warned against too ready an application of cannons of statutory interpretation to the task of construing an enterprise agreement. However in our view, it is not so much a case of applying an interpretative presumption but of reading clause 10.4 in an ordinary and logical way. It is already clear that the ordinary rate for casuals is the loaded rate. Clause 10.4(d) specifies a different arrangement in respect of shift allowances, because otherwise they would have been subject to the general position that penalties are applied to the loaded casual rate, and this was not intended to be the case of shift allowances. It is also significant that clause 10.4(d) speaks of ‘the ordinary rate of pay excluding the casual loading’, which also reaffirms that in the context of this clause, for casual employees, the casual loading is part of the ordinary rate; otherwise it would not make sense to speak of ‘excluding’ the casual loading from it.’

[6] In the exposure draft for the Nurses Award clause 6.4(d) is based on clause 10.4(d) of the current award and is set out below:

‘6.4 Casual employment

(a) A casual employee is an employee engaged on an hourly basis.

(b) Casual loading

(i) For each ordinary hour worked, a casual employee must be paid

• the minimum hourly rate applicable to their classification and pay point; and

• a loading of 25% of the minimum hourly rate applicable to their classification and pay point,

for the classification in which they are employed.

(d) A casual employee will be paid shift allowances and Saturday and Sunday rates calculated on the minimum rate of pay applicable to their classification and pay point, excluding the casual loading with the casual loading component then added to the penalty rate of pay.’

[7] Schedule B to the Exposure Draft sets out a ‘summary of hourly rates of pay’ for full time, part time and casual employees. This includes the rates to be paid to casual employees on a Saturday and Sunday. The rates in Schedule B have been calculated using a cumulative method, which appears to be at odds with the interpretation of the current award clause by the majority in ANMF v Opal Aged Care.

ANMF submission

[8] In a submission dated 21 July 2016 4 (filed as part of the Review proceedings in AM2014/207), the ANMF agreed to the wording of clause 6.4(d) as it currently appears in the exposure draft. The ANMF submit that the wording of 6.4(d) in the exposure draft was consistent with a 2012 decision of former Vice President Watson5 in which the Vice President said:

‘[37] … 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.’

[9] In the recent submission by the ANMF, dated 13 June 2019 6, it seeks to withdraw its submission of 21 July 2016 and submits that the decision in ANMF v Opal Aged Care is the relevant authority on the matter and that the approach outlined by Vice President Watson is not the correct interpretation. In its submission the ANMF state:

‘Clauses 10.4(b) and 10.4(d) of the Award are the equivalent clauses to 6.4(b) and 6.4(d) respectively in the Nurses Award Exposure Draft. It is clear that the casual loading and weekend penalties “compound” in the Award is the ordinary rate of pay for a casual employee includes the casual loading.

With respect to shift allowances, these are not compounded but added. This is because Clause 10.4(d) makes an exception for afternoon and night shift penalties which are calculated on the ordinary rate of pay which specifically excludes the casual loading. 7

[10] The ANMF propose the following amendment to clause 6.4(d) of the Exposure Draft:

‘(d) A casual employee will be paid shift ~~allowances~~ penalties ~~and Saturday and Sunday rates~~ calculated on the minimum rate of pay applicable to their classification and pay point, excluding the casual loading with the casual loading component then added to the penalty rate of pay.’

[11] The ANMF outlined that if the above amendment is adopted the rates contained in Schedule B would also need to be amended to reflect the interpretation of the Award as stated in ANMF v Opal Aged Care.

Next steps

[12] A conference will be convened before the President at 4pm on Tuesday 20 August 2019 to discuss the issue.

[13] Interested parties are invited to file a short written submission in response to the ANMF’s redrafted clause 6.4(d) (outlined at [10] above), by no later than 4pm on Tuesday 13 August 2019.

[14] The conference will be held in Melbourne. If any party requires a video link to another location they are to write to chambers.ross.j@fwc.gov.au by no later than 4pm on Tuesday 13 August 2019. A notice of listing will be issued shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 ANMF submission, 13 June 2019

2 [2019] FWCFB 1716

3 [2019] FWCFB 1716 at [17] - [18]

4 ANMF submission, 21 July 2016

5 Aged Care Association Australia & Others, Australian Nursing Federation, Australian Business Industrial [2012] FWC 9420, 14 November 2012

6 ANMF submission, 13 June 2019

7 ANMF submission, 13 June 2019 at p 3