[2013] FWC 2965
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
Australian Medical Association and others
(AM2012/133 and others)
Health and welfare services
VICE PRESIDENT WATSON
MELBOURNE, 13 MAY 2013
Modern awards review - Health Professionals and Support Services Award 2010 - Shiftwork Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Sch 5, Item 6.
[1]
Since I handed down my decision [[2013] FWC 2182] in this matter my attention has
been drawn to the absence of reasons for refusing to grant a variation to the shiftworker
definition in clause 3.1 of the Health Professionals and Support Services Award 20101 (the
Award). Dr Patrick Sim, on behalf of the Chiropractors Association of Australia sought a
change to this definition as well as a change to the shiftworker definition for the purposes of
annual leave in clause 31.1. Although the variation sought in each case was the same, the
variation to clause 3.1 was directed to a different purpose, to resolve an alleged ambiguity as
to the entitlements to weekend loadings and shift allowances.
[2]
The definition in clause 3.1 provides:
“shiftworker is an employee who is regularly rostered to work their ordinary hours
outside the ordinary hours of work of a day worker as defined in clause 24.”
[3]
Clause 24 of the Award provides a span of hours depending on the nature of the
operation. The provisions have been subject to some review and amendment since the Award
was initially made. Clause 24 is now in the following terms:
“24. Span of hours
24.1 Unless otherwise stated, the ordinary hours of work for a day worker will be
worked between 6.00 am and 6.00 pm Monday to Friday.
24.2 Private medical, dental and pathology practices
The ordinary hours of work for a day worker will be worked between 7.30 am and
9.00 pm Monday to Friday and between 8.00 am and 4.30 pm on Saturday.
24.3 Private medical imaging practices
(a) Five and a half day practice
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[2013] FWC 2965
The ordinary hours of work for an employee will be worked between 7.00 am
and 9.00 pm Monday to Friday and between 8.00 am and 1.00 pm on Saturday.
(b) Seven day practice
Where the work location of a practice services patients on a seven day a week
basis, the ordinary hours of work for an employee at that location will be
between 7.00 am and 9.00 pm Monday to Sunday. Work performed on a
Saturday will be paid at the rate of time and a quarter of the employee’s
ordinary rate of pay instead of the loading prescribed in clause 26—Saturday
and Sunday work. Work performed on a Sunday will be paid at the rate of time
and a half of the employee’s ordinary rate of pay instead of the loading
prescribed in clause 26.
24.4 Physiotherapy practices
In physiotherapy practices, the ordinary hours of work for a day worker will be
worked between 6.00 am and 6.00 pm Monday to Friday and 6.00 am to 12.00 noon
on Saturday.”
[4]
Dr Sim referred to advice received from the Fair Work Ombudsman regarding this
matter and took issue with the interpretation adopted. He also expressed concern that the
Award definition results in many employees in private chiropractic clinics being deemed to be
shiftworkers because they work beyond the spread of hours for day workers. In the case of
chiropractic clinics it appears to be accepted that the general provision applies, and that the
day worker hours are between 6.00 am and 6.00 pm, Monday to Friday. Dr Sim submits that
an employee who finishes work at 6.30 pm would fall within the definition of a shiftworker
and that this is not commonly regarded as shiftwork hours. The main consequence of being
classified as a shiftworker under clause 3.1 is the entitlement to a 15% shift allowance under
clause 29. The application did not receive any general support from representatives of other
classes of medical employers.
[5]
I do not agree that working beyond 6.00 pm on a regular basis is outside the normal
conception of shiftwork. Many awards deem such a shift to be an afternoon shift. I am of the
view that the intention of the Award is to create an entitlement to shift allowance for an
employee regularly rostered to work such hours.
[6]
As to the other concerns raised on behalf of Dr Sim, I am not satisfied that an
entitlement such as this in a minimum rates award necessarily creates a compliance problem
for professional employees paid on the basis of an annual salary well in excess of Award
entitlements. I am not satisfied that the definition should be varied for all employees covered
by the Award to either of the alternatives proposed by Dr Sim.
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[2013] FWC 2965
[7]
I note that the span of hours in clause 24 varies depending on the type of medical
practices involved. If the position of chiropractors has not been adequately addressed in the
formulation of this provision, an appropriate variation to the clause could be considered in a
subsequent review of the Award.
VICE PRESIDENT WATSON
Appearances:
L. Izzo for Australian Business Industrial
K Barratt with D Wilkinson for the Australian Dental Association
F Hancock, of counsel, with O Valaire for the Australian Medical Association
A Doyle for the Australian Federation of Employers and Industry
H Wallgren for Business SA
P Frazer for Dr Patrick Sim
L Hepworth and L Fisher for the Private Hospital Industry Employers Association
L Doust, of counsel, with L Svendsen for the Health Services Union
Hearing details:
2012.
Sydney.
26, 28 November.
Final written submissions:
HSU, 7 December 2012.
ABI on behalf of the joint employers, 14 December 2012
Business SA, 14 December 2012.
ADA, 14 December 2012.
Dr Patrick Sim, 13 December 2012.
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