DECISION

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

Australian Red Cross Society T/A Australian Red Cross Lifeblood
(AG2020/2045)

AUSTRALIAN RED CROSS LIFEBLOOD DONOR SERVICES AND NURSING ENTERPRISE AGREEMENT VICTORIA AND TASMANIA 2019

Health and welfare services
COMMISSIONER CIRKOVIC	MELBOURNE, 11 AUGUST 2020

Application for approval of the Australian Red Cross Lifeblood Donor Services and Nursing Enterprise Agreement Victoria and Tasmania 2019.

[1] An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood Donor Services and Nursing Enterprise Agreement Victoria and Tasmania 2019 (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 Society T/A Australian Red Cross Lifeblood. The Agreement is a single enterprise agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 20.1;

• Clause 24.9; and

• Clause 48.18.

[6] However, noting clause 9.1 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement was approved on 11 August 2020 and, in accordance with s.54, will operate from 18 August 2020. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Australian Red Cross Society trading as Australian Red Cross Lifeblood for the approval of the Donor Services and Nursing Enterprise Agreement Victoria and Tasmania 2019. This agreement pertains to the terms and conditions of employment for certain employees within the specified regions. The Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues central to the case revolved around whether the agreement provided for minimum terms as required by section 235 of the Fair Work Act, and whether it satisfied the good faith bargaining criteria set out in section 228 of the Act. The Commission needed to assess if the agreement was the product of genuine efforts to reach an agreement through bargaining and whether it contained terms that were at least as favourable as the applicable minimum terms.

In its decision, the Fair Work Commission found that the agreement was the result of genuine efforts to bargain in good faith and contained terms that were at least as favourable as the minimum terms prescribed by the Fair Work Act. The Commission was satisfied that the process leading to the agreement was conducted in an environment conducive to meaningful negotiation. Additionally, the Commission determined that the agreement provided for minimum terms that were consistent with the legislative requirements. Consequently, the Commission approved the agreement as meeting the statutory standards for approval.

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