Nurses working under the profession’s modern award will see their minimum rest break between ordinary shifts increase from eight to 10 hours after the ANMF made a successful claim to improve the current interval as part of the Fair Work Commission’s compulsory 4 yearly review of the Nurses Award 2010 (Nurses Award) undertaken recently.
The FWC is required to carry out a four yearly review of all modern awards to ensure they provide a fair and relevant minimum safety net of terms and conditions.
The majority of nurses working under the Nurses Award 2010 (Nurses Award) work in aged care, private hospitals and general practices.
The ANMF submitted an extensive log of claims, including the call to give an employee an extra two hours between the completion of one shift and start of the next, except where they agree to an eight-hour break.
The union also proposed the introduction of a penalty for breaching the entitlement, with employees asked to return to work without having had their minimum rest break to be paid double-time until they have taken a 10-hour break.
In arguing for the amendment, the ANMF said evening shifts followed by a morning shift regularly occur, meaning the existing eight-hour break does not sufficiently allow nurses an adequate period of rest before resuming work.
It cited several studies illustrating the negative effects associated with being awake for extended periods of time and ongoing reduced sleep, adding that a proper break between rostered shifts was essential to the health and safety of employees.
In accepting the ANMF’s claim, the FWC said the majority of modern awards already provide either a 10-hour break between shifts or an eight-hour break, plus travel time, for good reason.
“An employee needs to sleep between shifts to manage fatigue and for there to be a safe workplace,” it found.
“It will often be impractical for an employee to leave the workplace, travel home, eat and sleep for a healthy duration and travel back to work with an eight hour break between shifts. For this reason, the employee’s agreement should be obtained to reduce from 10 hours as the employee will be in the best position to manage their own fatigue.”
ANMF Acting Senior Federal Industrial Officer Andrew McCarthy welcomed the FWC’s decision.
“This is a significant and welcome improvement to the safety net for nurses and midwives. The existing provision was inadequate to ensure that nurses get enough sleep and rest between work periods, which in some circumstances meant that employees didn’t even get to see their children between shifts,” Mr McCarthy said.
“It is very pleasing to see the FWC accept the expert evidence which shows that lack of breaks between shifts increases risks to health and safety and resident/patient safety.”
Other key amendments to the Nurses Award 2010 (Nurses Award) achieved by the ANMF targeted meal breaks and rostering.
The ANMF proposed two changes to the existing meal breaks clause.
The first related to the timing of meal breaks, where employees working in excess of five hours are entitled to an unpaid meal break of no less than 30 minutes and no more than an hour.
The ANMF’s amendment stipulated meal breaks must be taken between the fourth and sixth hour after the shift has begun, unless a majority of employees agree otherwise.
Further, employees who work shifts of six hours or less would be allowed to forego their meal break.
The other change put forward by the ANMF suggested employees required to remain available or “on call” during a meal break but free from duty should be paid at ordinary rates for a 30-minute meal break.
The existing clause means that employees can effectively be requested to be “on call” during their meal breaks without compensation.
In delivering its verdict, the FWC said nurses should be able to have an uninterrupted meal break at a juncture during a shift appropriate to the needs of the workplace.
It labelled the ANMF proposal that meal breaks be taken within the fourth and sixth hours of work “problematic” due to a workplace’s potential operational requirements but said adopting a formulation with the wording “where reasonably practicable” could solve the problem and added it to the clause.
With respect to the ANMF’s calls for greater protections in the event a nurse is required to be available to work during a meal break, the FWC endorsed the ANMF’s proposed amendment that brings greater clarification to the clause by acknowledging nurses who are free from duty but required to remain available will be paid at ordinary rates during a meal break.
Another major claim related to rostering, with the Aged Care Employers (ACE) putting forth an amendment seeking to provide an employer with the ability to alter an employee’s roster without the existing requirement of giving the employee seven days’ notice, in circumstances where the employee has agreed to the roster change.
The ANMF strongly opposed the ACE’s claim on the grounds that the imbalance in bargaining power between employers and employees could mean employees feel pressured to agree to changes reluctantly.
The FWC agreed with the ANMF’s submission and rejected the ACE proposal, noting that if a superior asks an employee to change rosters, the employee’s decision-making may be compromised by fear of unwarranted repercussions if the request is declined.
While the FWC did not back the changes proposed by the ACE, it did acknowledge that the clause should provide greater flexibility for the employer to change a roster to fill a gap created by an unplanned absence.
It therefore agreed to amend the clause to outline further circumstances in which an employer is not required to give seven days’ notice of a change of roster to include absences from work due to personal/cares leave, compassionate leave and domestic violence leave.