by Matthew Bullas
Oct 01, 2019
Wages & Entitlements

Opal decision: Are you paying your casual nurses correctly?

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.

What does this mean for you?

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.

What do the Wizards say?

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.

Make sure you get in touch with Matthew Bullas on 0408 443 536 or email matt@workplacewizards.com.au for a free and no-obligation chat.

SHARE THIS

Matthew Bullas

Consultant

Matt enjoys assisting our clients to resolve their workplace issues, by offering clear, practical, bespoke solutions, matched to their specific needs. Matt's approach is to always remain cognisant of the commercial environment our clients operates in, managing IR, OHS and workplace risks, against the commercial and operational needs of the business.

Leave a Reply

avatar
  Subscribe  
Notify of

FREE GUIDE: DIFFERENT LEAVE TYPES

Download our free guide on how to understand different employee leave entitlements. Subscribe to our mailing list by filling out the form below to receive a copy.