DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Red Cross Society T/A Australian Red Cross Lifeblood
(AG2020/3476)

AUSTRALIAN RED CROSS LIFEBLOOD SOUTH AUSTRALIAN DONOR CENTRE AND NURSES ENTERPRISE AGREEMENT 2019

Health and Welfare Services
COMMISSIONER PLATT	ADELAIDE, 16 DECEMBER 2020

Application for approval of the Australian Red Cross Lifeblood South Australian Donor Centre and Nurses Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood South Australian Donor Centre and Nurses Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Red Cross Society T/A Australian Red Cross Lifeblood (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 November 2020.

[3] On 4 December 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 December 2020. The undertaking deals with the following topics:

• The entitlements in clauses 23.7 to 23.9 will apply on a pro-rata basis for any employees who meets the eligibility criteria but has not yet been engaged for a consecutive twelve month period.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The Australian Nursing and Midwifery Federation (ANMF) provided a submission dated 15 December 2020 asserting that clause 11 of the Agreement is less beneficial than clause 10.3 of the Nurses Award 2010 (the Award) on the basis that the Agreement provides less certainty to part-time employees regarding their hours despite this the ANMF did not consider that the Agreement fails the better off overall test (BOOT).

[6] I have reviewed the part-time provisions of the Agreement versus the Award and agree that whilst the provisions are not consistent, the Agreement appears to meet the BOOT.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Australian Red Cross Society, trading as Australian Red Cross Lifeblood, made an application for approval of the South Australian Donor Centre and Nurses Enterprise Agreement 2019. The applicant sought to have the agreement, which was negotiated between the parties, registered as a single, certified agreement. The dispute arose from negotiations for a new enterprise agreement, which the parties intended to cover a range of employees within the South Australian Donor Centre and Nurses Enterprise Agreement.

The central legal issue for the Commission to determine was whether the agreement met the necessary criteria for approval and registration under the Fair Work Act 2009. This included assessing if the agreement had been genuinely negotiated, if it included the required terms, and if it complied with the procedural requirements of the Act. Additionally, the Commission needed to ensure that the agreement did not undermine the safety and health provisions under the Occupational Health and Safety Act 1984.

The Commission concluded that the agreement was genuinely negotiated, as evidenced by the process followed by the parties. The terms of the agreement were found to be fair and reasonable, and it was confirmed that the agreement did not contravene any provisions of the Occupational Health and Safety Act 1984. The procedural requirements of the Act were also met, including the provision of necessary information to affected employees. Consequently, the Commission approved the agreement, which will now be registered as a single, certified agreement.

As a result of the approval, the South Australian Donor Centre and Nurses Enterprise Agreement 2019 will be registered, and its terms will apply to the employees covered by the agreement. The decision ensures that the agreement is legally binding and enforceable, providing a framework for the employment relationship between the parties.

Australian Red Cross Society T/A Australian Red Cross Lifeblood

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established