Royal Rehab [2025] FWCA 1244 (14 April 2025)

[3] Clause 6 Part 1(viii) of the Agreement, pertaining to part-time overtime, originally cited clauses 6 Part 1(vii) and (viii), but it seems it should have cited clauses 6 Part 1(vi) and (vii). Similarly, clause 17(h), concerning Sick Leave, incorrectly references clause 27B instead of clause 26B.

[4] The Employer provided submissions confirming that typographical errors were made. The Employer submitted that clause 6 Part 1 (viii) of the Agreement which relates to part time overtime should reference clauses 6 Part 1(vi) & (vii) and clause 17(h) of the Agreement which relates to Sick Leave should reference clause 26B.

[5] I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the Commission and do so pursuant to s.586(a) of the Act.

[6] Clause 26B(iii)(c) of the Agreement provides that the employee may elect, with the consent of the employer, to take leave without pay for the purpose of providing care and support. This appears inconsistent with the National Employment Standards (NES) which provides an employee with an entitlement to 2 days of unpaid carers leave for each occasion after exhausting paid carer's leave.

[7] I note that in accordance with the NES precedence term in Clause 1(iv) of the Agreement, this clause will be read and interpreted in conjunction with the NES.

[8] Clause 15(iii) of the Agreement provides that the employer shall give to each employee three (3) months' notice where practicable and not less than one (1) months' notice of the date upon which the employee shall enter upon annual leave. This appears inconsistent with the direction to take excessive leave provisions in clause 27 of the Award.

[9] The Employer submitted that it always consults with any impacted employee to agree on a plan for the taking of excessive annual leave over a period of time and that it usually provides a minimum of 8 weeks' notice to employees to take such leave in accordance with the Award.

[10] The Agreement appears to provide for Apprentices. However, the Agreement does not contain rates of pay for apprentices and as such, they cannot be considered better off overall.

[11] The Employer submitted that it does not employ Apprentices and does not intend to hire Apprentices for the duration of the Agreement. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ any Apprentices during the life of this Agreement.

[12] Additionally, the Employer requested that any references to Apprentices in the Agreement be deleted as they were included in error. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

[13] The Agreement does not specify that before the commencement of part-time employment, the Employer and employee will agree in writing on a regular pattern of work including the number of hours worked each week, the days of the week the employees will work and starting and finishing times each day. The Award contains these safeguards in clause 10.2.

[14] The Employer provided submissions that as an affiliated health organisation under the Health Services Act 1997, it complies with the Health Employees' Conditions of Employment (State) Award 2024 (the State Award) which mandates significantly higher pay rates than the Award - for example, $28.44 per hour for a Level 1 Support Services Employee compared to $24.87, and $41.48 per hour for a Level 6 employee compared to $29.60. The Employer submits that it provides part-time employees with rosters four weeks in advance, detailing days, hours, and start and finish times, and offers operational flexibility to accommodate personal commitments. Work outside rostered hours triggers automatic overtime payments or time off in lieu, as elected by employees. The Employer argues that its adherence to the State Award, higher pay rates, and rostering practices ensure employees are better off overall, consistent with practices of other affiliated health organisations approved by the Commission.

[15] It is unclear whether the Meal Allowance in clause 13(iv) is to be provided per hour or per occasion. The Employer provided submissions confirming that the Meal Allowance is intended to be paid per occasion, read in conjunction with clause 12(ii) and (iii) of the Agreement.

[16] I have considered the submissions of the Employer referred to above and I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[17] The Health Services Union (HSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

[18] In accordance with s.201(2), I note that the Agreement covers the HSU.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 April 2025. The nominal expiry date of the Agreement is 14 April 2028.

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