FWC rejects union claim on transfer to safe work pay

FWC rejects union claim on transfer to safe work pay

FWC rejects union claim on transfer to safe work pay

The Fair Work Commission has rejected a union application that an employee transferred to a safe job should be guaranteed to earn the same gross pay they received prior to the temporary transfer.

The case heard before Deputy President Amanda Mansini was brought by the Australian Rail, Tram and Bus Industry Union (the Union) on behalf of a female employee TF, who is employed in Victoria by Metro Trains Melbourne Pty Ltd (Metro). The rail Union lodged a dispute arguing that the terms of Metro’s certified Agreement were inconsistent with the terms provided by the National Employment Standards (NES).

The relevant provision of the Agreement is clause 2.8.7, which provides:

2.8.7      Transfer to a Safe Job

(a) Where an Employee is pregnant and, in the opinion of a registered
medical practitioner, illness or risks arising out of the pregnancy or risks
with the work make it inadvisable for the Employee to continue work, the
Employee will, if the Company deems it practicable, be transferred to
a safe job at the rate and on the conditions attached at the Employee’s
full rate of pay prior to the transfer until the commencement of
Parental Leave.

(b) If the transfer to a safe job is not practicable, the Employee may ask,
Or the Company will pay an eligible Employee ‘no safe job’ pay. If the
Employee is not eligible they may be required to commence Parental
Leave for such period as is certified necessary by a registered medical
Practitioner. In such cases the fourteen (14) week period of Parental
Leave will then be due to commence.

Ms F was classified as a Multi-Model Authorised Officer. She became pregnant in late 2020 and, after a series of meetings, was transferred to a role in the Learning and Development team. No safe roles were available in her existing section.

In the first month following her transfer, she was paid a gross amount of $6,815 for the four-week roster, $966 less than she previously earned, amounting to $246.50 per week less. The Union argued that an employee transferred to a safe job was entitled to be paid the same total number of ordinary hours, and when those hours were worked (weekends, shift loadings etc.) They argued that the only deviation from this principle is when an employee agrees to a different number of hours and when those hours are worked.

The Deputy President respectfully disagreed.

In her determination, she noted s.82 of the Fair Work Act 2009, which specifically provides that in such circumstances,

“the employee must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period”.

As she noted,

“The inclusion of the words ‘for the hours that she works’ makes plain that s.81 does not operate to preserve an employee’s pre-transfer take home pay in all circumstances, but instead preserves the Employee’s pre-transfer rate of pay. If, for example, an employee whose pre-transfer role comprised 38 ordinary hours per week agreed to transfer (under s81(3)(b)) to an appropriate safe job with 15 ordinary hours per week, that Employee would not be paid for 38 hours”.

In other words, the Employee is entitled to maintain their existing pay rate upon transfer, but their gross pay will be determined by the number of hours actually worked.

Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd (Metro) [2022] FWC 720 (31 March 2022)

For queries about enterprise agreements, parental leave, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 358.0723

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