Australian Red Cross Blood Service

[2013] FWCA 78

[2013] FWCA 78

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Red Cross Blood Service
(AG2012/8708)

AUSTRALIAN RED CROSS BLOOD SERVICE NURSES ENTERPRISE AGREEMENT VICTORIA 2012

Health and welfare services
VICE PRESIDENT WATSON	SYDNEY, 7 JANUARY 2013

Application for approval of the Australian Red Cross Blood Service Nurses Enterprise Agreement Victoria 2012.

[1] An application has been made for approval of an enterprise agreement known as the Australian Red Cross Blood Service Nurses Enterprise Agreement Victoria 2012 (the Agreement). The application is made by the Australian Red Cross Blood Service (the Red Cross) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement subject to the application is a single-enterprise agreement.

[2] The application for approval was lodged on 12 November 2012. On 13 November 2012 the Australian Nursing Federation (ANF) lodged a Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement (Form F18). On 23 November the Health Services Union (HSU) lodged a similar declaration. Both the ANF and HSU indicated support for the approval of the Agreement by the Fair Work Commission (the Commission).

[3] In its Declaration the HSU noted its disagreement to some of the responses of the Red Cross on the Employers Declaration in Support of Application for Approval of Enterprise Agreement. The matters in contention included the appropriate award coverage of some of the classifications of employees covered by the Agreement as well as the identification of matters that the Red Cross had not identified in its declaration as being less beneficial than equivalent terms and conditions of the Nurses Award 2010 1(the Nurses Award).

[4] In light of the information contained in the HSU’s declaration, the Red Cross was asked to review its declaration and file an amended declaration if it contained any inaccurate information. The Red Cross confirmed that it was of the view that the declaration was correct and no amendment was required.

[5] The Red Cross admitted in email correspondence that at least one benefit under the agreement, meal allowance, was less than provided for in the award, but that as employees who receive meal allowance are paid overtime at rates significantly above the award, there is no net disadvantage. The Red Cross maintains that although it failed to draw attention to this matter in its declaration, the declaration is not incorrect.

[6] The position of the Red Cross represents a misunderstanding of the requirements for employer declarations. In order to apply the better off overall test, the Commission must assess both the less beneficial entitlements and the more beneficial entitlements in the agreement compared to the relevant benefits under the award. The declaration required to be filed by employers requires employers to identify every less beneficial provision so that their significance can be properly assessed for the purposes of the test. In this case the meal allowance is marginally less beneficial and the wage rates are significantly more beneficial. It is not the employer’s role to modify the information it is required to provide by reference to this type of trade off. It is required to honestly disclose every less beneficial provision and every more favourable provision. The failure of the Red Cross to do this even after attempts to have it file a compliant declaration has led to a delay in the processing of this application.

[7] The modified declaration which properly identifies the minor areas in which the agreement is not as beneficial as the award enables the Commission to apply the tests for approval. Having regard to that material I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] The ANF and HSU have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers these organisations.

[9] The Agreement is approved and, in accordance with s.54(1)(a), will operate from 14 January 2013. The nominal expiry date of the Agreement is 31 May 2015.

VICE PRESIDENT

 1   MA000034.

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