Following our previous blog (to read, click here) about the decision in Australian Nursing and Midwifery Federation v Domain Aged Care T/A Opal Aged Care (“Opal Decision”), we now turn to look at what this means for those who employ casual nurses (including both registered and enrolled nurses).
A key aspect of this appeal was whether Commissioner McKinnon had correctly found that the pay rates in Opal Aged Care’s (“Opal”) Enterprise Agreement were higher than the pay rate in the Nurses Award 2010 (“Nurses Award”) (accounting for loadings and allowances).
The Australian Nursing and Midwifery Federation’s (“ANMF”) position was that penalty rates must be calculated on an employee’s casually loaded rate. Conversely, Opal relied on the Award Modernisation Decision (AM 2008/1-12) to contend that, as a general rule, both penalties and casual loading should be calculated on the ordinary time rate.
In their joint-decision, Deputy President Gostencnick and Deputy President Colman ultimately found Commissioner McKinnon’s initial approach correct. Specifically, the Deputy Presidents state:
“… in our view, it is not so much a case of applying an interpretative presumption but of reading clause 10.4 [of the Nurses Award] in an ordinary and logical way. It is already clear that the ordinary rate for casuals is the loaded rate.”
The Commissioner’s also stated:
“The Commissioner’s conclusion [in the original decision] that overtime penalties are also paid on the loaded casual rates of pay is in our view also correct”
The Opal Decision highlights the importance of correctly interpreting modern awards, negotiating pay rates and structuring enterprise agreements. The below table clearly highlights how a minor change in the way an organisation interprets the Nurses Award can significantly change an employee’s hourly pay rate. Ultimately, it can prove very costly if your organisation gets this wrong.
The Opal decision means employers of casual nurses must now ensure it pays their applicable allowances, loadings, penalties etc. on top of their casually loaded rate rather than on top of their base rate. As seen in the above table, this can have a significant financial impact for an employer if they have been following the long-standing approach to casual loading as adopted by Opal.
Given the above, it is important for all employers who have nursing staff to be aware of how they should be applying and interpreting various provisions of the Nurses Award. At Workplace Wizards we can assist employers in meeting the minimum legislative and award standards.
