Royal Rehab [2025] FWCA 1247 (14 April 2025)

[1] Royal Rehab (the Employer) has made an application for approval of an enterprise agreement known as the Royal Rehab (Non-Declared) Affiliated Health Organisation Professional and Associated Staff Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by the Health Professionals and Support Services Award 2020 (the Award).

Shiftworker for the purposes of the National Employment Standards (NES)

[3] Clause 12(ii)(a) of the Agreement appears to provide a definition of a shiftworker for part-time employees only. Further, the definition of a shift worker appears to be more onerous than the Award and does not specify that it is for the purposes of the NES.

[4] The Employer submitted that referencing clause 6 (part-time employees) in clause 12(ii)(a) was an error, and that it intended to refer to the NES. This mistake incorrectly limits the shiftworker definition to part-time employees, contrary to the intention of including all permanent employees. 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.

[5] The Employer further submits that under the Award, a shiftworker is defined as an employee working outside the ordinary hours of a day worker, which in a hospital setting typically spans Monday to Friday. Regularly working Sundays and public holidays qualifies an employee as a shiftworker, irrespective of any requirement for 7-day rostering. This aligns with Clause 27.2 of the Award, which specifies that, for NES purposes, a shiftworker is an employee consistently rostered to work Sundays and public holidays.

[6] Clause 24B(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 to be inconsistent with the National Employment Standards (NES) which provides an employee with an entitlement to two 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] The Agreement does not specify that before the commencement of part-time employment, the Employer and the 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 employee will work, and starting and finishing times each day. The Award contains these safeguards in Clause 10.2.

[9] The Employer submits that as an affiliated health organisation under the Health Services Act 1997, it complies with the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2024 (the State Award), which mandates significantly higher pay rates than the Award, for example, $37.03 per hour for a Level 1 Health Professional compared to $28.50, and $61.36 per hour for a Level 4 compared to $51.25. The Employer provides part-time employees with rosters four weeks in advance, detailing days, hours, and start and finish times, and offers flexibility to accommodate personal commitments. Work outside rostered hours triggers automatic overtime payments or time off in lieu, as elected by employees under Clause 24B(iv). The Employer submits 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.

[10] 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.

[11] 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.

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

[13] 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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