Australian Red Cross Blood Service T/A Australian Red Cross Blood Service - Queensland
[2024] FWCA 435
•5 FEBRUARY 2024
| [2024] FWCA 435 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Red Cross Blood Service T/A Australian Red Cross Blood Service - Queensland
(AG2023/5487)
AUSTRALIAN RED CROSS LIFEBLOOD DONOR CENTRE AND CLINICAL ENTERPRISE AGREEMENT 2023
| Health and welfare services | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 5 FEBRUARY 2024 |
Application for approval of the Australian Red Cross Lifeblood Donor Centre and Clinical Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood Donor Centre and Clinical Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Red Cross Blood Service T/A Australian Red Cross Blood Service - Queensland. The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.
The Health Services Union (HSU) submitted a form F18, indicating their view that the Agreement does not pass the better off overall test based on the following:
(a)Clauses 7.3 and 7.4 of the Agreement which relates to ordinary hours of work, may constitute worse eligibility conditions for overtime pay than those of the Health Professionals and Support Services Award; and
(b)Clause 30.6 of the Agreement which relates to Higher Duties contains eligibility conditions that are worse than those of the Award, specifically in support services classifications.
My chambers raised the issue concerning clause 30.6 of the Agreement with the Applicant and submissions were received from the employer in response. The rates under the Agreement are between 12.47% and 54.54% above the minimum rates in the Health Professionals and Support Services Award 2020. In addition, the Agreement provides terms and conditions that are more beneficial to employees than under the relevant awards. These include: an extra week of annual leave, and an additional week for working 10 or more Saturdays or Sundays, 15 days of personal leave expanded to include pets, greater paid parental leave and notice of rosters, further additional paid leave such as up to 6 weeks paid gender affirmation leave, paid blood donor leave, volunteer leave, and unlimited paid domestic and family violence leave. There are also higher Sunday shift penalties, additional breaks and an additional public holiday.
Specifically in relation to Higher Duties, the Applicant submitted calculations that show that, other than two roles, the Agreement rate is higher than the higher duties rate in the Award. The two roles are Level 1 Centre Team Assistant and Level 1 Centre Service Officer performing a role at Level 4, which it submits is not possible as they do not have the requisite skills, qualifications or experience required, and therefore the scenario cannot occur.
Given the Applicant’s submissions and the significantly higher rates and other beneficial conditions provided under the Agreement, I am satisfied that the Agreement passes the better off overall test, notwithstanding that there are some less favourable conditions including those identified by the HSU.
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.
The Australian Nursing and Midwifery Federation (ANMF), the HSU and the Australian Salaried Medical Officers Federation (ASMOF), being the bargaining representatives for the Agreement, 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 the organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2024. The nominal expiry date of the Agreement is 30 November 2026.
Variation
A Form F1 was simultaneously lodged with the Agreement application, which sought to vary provisions of the Agreement pursuant to sections 217 and 218A of the Act (the Form).
The Form highlighted errors within the Agreement that had been identified by the Applicant as follows:
(a) Clause 20.23 – Add ‘and’ after ‘loading’ and before ‘is’;
(b) Clause 35.8 – Replace reference to clause ‘31’ with correct reference to clause ’35.2’;
(c) Delete blank page before Part 5 – Allowances;
(d) Delete empty signature blocks;
(e) Amend Appendix 6 – Payments for Historical Periods:
i.Amend Table Headings from ‘Donor Centre and Clinical Enterprise Agreeement’ to ‘Donor Centre and Clinical Enterprise Agreement’;
ii.Replace Table sections referencing ‘Vic Enterprise Agreement 2017 (Donor Centre Roles only)’ and TAS Enterprise General Agreement 2017 (Donor Centre Roles Only)’ as outdated tables were added erroneously for Victorian and Tasmanian employees.
(f) Update Index and page numbering to reflect the above where necessary.
The Applicant submits that permission was sought from all employee bargaining representatives in relation to the amendments and permission was either received or no comment was made. I provided the employee bargaining representatives with a further opportunity to provide any objections to the amendments sought. No response was received.
I am satisfied that s.218A applies to the variations at paragraph 12 of this Decision.
Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1);
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.
(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”
As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.
Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.
The Applicant submits that the amendments at paragraph 12(a)-(d), (f) seek to address typographical and formatting errors. The Applicant further submits that the amendment at paragraph 12(e) seeks to correct outdated tables which were added erroneously for the Victorian and Tasmanian employees. The Applicant submits that affected employees were advised of the error prior to the commencement of the voting period.
I am satisfied that the typographical and formatting errors in the Agreement outlined at paragraphs 12(a)-(d), (f) of this Decision are obvious errors. I am also satisfied that the amendment at paragraph 12(e) is an obvious error and required to accurately reflect what was clearly intended. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. No objection was received from any of the employee bargaining representatives. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 12, will be amended as per the order.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:
(a) Clause 20.23 – Amend the clause by adding ‘and’ after ‘loading’ and before ‘is’;
(b) Clause 35.8 – Replace reference to clause ‘31’ with correct reference to clause ’35.2’;
(c) Delete blank page before Part 5 – Allowances;
(d) Delete empty signature blocks;
(e) Amend Appendix 6 – Payments for Historical Periods:
i.Amend Table Headings from ‘Donor Centre and Clinical Enterprise Agreeement’ to ‘Donor Centre and Clinical Enterprise Agreement’;
ii.Replace Table sections referencing ‘Vic Enterprise Agreement 2017 (Donor Centre Roles only)’ and TAS Enterprise General Agreement 2017 (Donor
(f) Update Index and page numbering to reflect these amendments;
The variations pursuant to s.218A above will operate from 12 February 2024.
The Applicant has simultaneously submitted a copy of the Agreement with the variations listed at paragraph 12. The Agreement, as varied, will be published with this Decision.
DEPUTY PRESIDENT
[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
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