Over the past five years the ANMF has been resisting a concerted campaign by aged care employers to remove important protections that give part time employees a level of predictability in their hours and days on which they are required to work. Presently part time nurses and carers covered by the Nurses Award are protected by a provision in the award that states:
“Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.”
These provisions are also reflected in many enterprise agreements.
This means that when a part time nurse or carer is first engaged they must be advised of their minimum number of hours per week and the days on which those hours are to be worked. Changes to these arrangements must be agreed and in writing.
And with the majority of workers in the aged care sectors employed on a part time or casual basis some certainty or predictability in the number of hours and the days required to attend work is very important.
In some ways these protections recognise that often nurses and carers are attracted to part time work as this allows them to meet other professional, economic and social requirements , including having other part time employment in order to earn a reasonable wage.
This was the view expressed by the Fair Work Commission in 2014 in response to one unsuccessful attempt by aged care employers to change part time arrangements. Here the tribunal observed,
“This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educational commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.”
For their part the aged care employers detest this requirement and argue that the rostering provisions in an award or enterprise agreement should be the only impediment, if any, to the employer’s right to change the employee’s number of hours or starting and finishing times.
In February 2017 this view was expressed by Bupa Aged Care in a court proceeding where they argued, as paraphrased below;
“Part time protections does not require Bupa to reach agreement with part time employees on their days of work or their starting and finishing times. Rather, subject to compliance with roster provisions, rosters are to be determined by Bupa and can be determined without the agreement of the employee.”
Given that roster arrangements normally only require seven days advanced notice of any change, the position of the aged care employers is clear. This being they want to unilaterally change the days of the week and starting and finishing times of part time nurses and carers with minimal notice and without regard to the impact on the employee.
The regulation of hours of work has an important and long history in Australia as part of the development of reasonable hours, fair pay as well as the payment of loadings, allowances and penalties in circumstances where an employee is required to work on weekends or as a shift worker.
Broadly speaking the regulations provide that a full time employee is one that works 38 hours or more per week. A part time employee works less than 38 hours per week and a casual is an employee who does not have regular or systematic hours of work or an expectation of continuing work. In Australia casual employees receive a 25% increase on their hourly wage rate in recognition of the irregular nature of their work and that they normally do not accrue sick, annual and other leave benefits.
Should the aged care employers be successful in their campaign to effectively deregulate part time employment then part timers will simply be casuals without the 25% loading. In workplaces such as hospitals and aged care where there is such a high reliance on part time labour, this would be a disastrous outcome for both part time employees and casuals.
Senior Federal Industrial Officer