Australian Red Cross Society Trading AS Australian Red Cross Lifeblood
[2025] FWCA 1421
•1 MAY 2025
| [2025] FWCA 1421 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Red Cross Society Trading AS Australian Red Cross Lifeblood
(AG2024/4921)
AUSTRALIAN RED CROSS LIFEBLOOD SOUTH WEST GENERAL ENTERPRISE AGREEMENT 2023
| Health and welfare services | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 MAY 2025 |
Application for approval of the Australian Red Cross Lifeblood South West General Enterprise Agreement 2023
Introduction
Australian Red Cross Society Trading as Australian Red Cross Lifeblood (Lifeblood) has made an application for approval of an enterprise agreement known as the Australian Red Cross Lifeblood South West General Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Employees covered by the Agreement perform work within, or primarily in support of, manufacturing, processing, testing, distribution, logistics, research, diagnostic, pathology, scientific, clinical governance, transplantation and immunogenetics services across Western Australia, Victoria, South Australia and Tasmania.
The following employee organisations were bargaining representatives in relation to the Agreement:
(a) The following branches of the Health Services Union (HSU):
(i)Western Australia Branch
(ii)Victoria No. 1 Branch
(iii)Victoria No. 3 Branch trading as the Victorian Allied Health Professionals Association (VAHPA)
(iv)Victoria No. 4 Branch trading as the Medical Scientists Association of Victoria (MSAV)
(b) Community and Public Sector Union (CPSU) SPSF Group, South Australian Branch
(c) The Association of Professional Engineers, Scientists and Managers, (APESMA) Professional Engineers Division, South Australia and Northern Territory Sub-Division
(d) The following branches of the Australian Municipal, Administrative, Clerical and Services Union (ASU):
(i)South Australian and Northern Territory Branch
(ii)Western Australian Branch
(e) United Workers' Union (UWU)
There were also two individual employee bargaining representatives.
On 8 April 2025, I issued a decision,[1] in which I indicated that I have a concern that:
1. The Agreement did not pass the better off overall test (BOOT); and
2. The Agreement has not been genuinely agreed to by the employees covered by the Agreement because the employer did not comply with s.180(5) of the Act in relation to the Agreement.
I expressed a preliminary view that the issues which I had identified with respect to the BOOT and s.180(5) could be addressed by Lifeblood providing specific undertakings.
BOOT Issues
Rates of pay
In its initial analysis of the Agreement, the Commission identified that the minimum base rate of pay of the following roles are below that of the corresponding classification in the Award:
DPU Change Planner (Agreement Classification General Level 4B Award Classification HP-L3-PP5);
Scientist/Laboratory Scientists (Agreement Classification Scientist Level 2A Award Classification HPL2-PP4); and
Blood Matters Scientist, Microbiome Safety Analyst (Agreement Classification Scientist Level 2B Award Classification HP-L3-PP5.
Lifeblood also identified that the minimum base rate applicable for Scientist Level 3C also falls below the comparable Award classification which is Health Professional Level 4 Pay Point 4. Lifeblood has provided a draft undertaking in relation to this issue.
In response to concerns raised by VAHPA about pay increases, Lifeblood provided a draft undertaking confirming that the wage increases in clause 40.2 of the Agreement also apply to the sub-levels set out in Appendix 2.
Maximum Hours
In relation to clause 8.3 of the Agreement permitting shifts to be rostered up to 12 hours, I found that employees performing such shifts may not be better off over all under the Agreement compared to the Award depending upon how often they are rostered to perform these shifts. Lifeblood has provided a draft undertaking in relation to this issue.
Part time employees
I found that part-time employees are not better off under the Agreement compared to the Award in relation to the Agreement not providing:
· a requirement for a part-time employee to have an agreed pattern of work that includes days of the week that the employee will work and the starting and finishing times each day;
· that part-time employees are deemed to have agreed to work additional hours if rostered to do so, unless they indicate otherwise.
Lifeblood has provided a draft undertaking in relation to this issue.
Genuine Agreement Issues
Domestic Violence Leave
The Australian Red Cross Blood Service General Enterprise Agreement Victoria 2017 (2017 Victorian Agreement), which is one of the predecessor agreements, provides for:
· Flexible working arrangements and other supporting measures, such as changes to work location where possible;
· Access to the Employee Assistance Program;
· Treating matters of family or domestic violence confidentially and only disclosing information if required by law or to maintain the safety of the employee.
However, these matters will be covered by policy which may be altered during the life of the Agreement. I found that these changes do not appear to have been explained to employees by Lifeblood. Lifeblood has provided a draft undertaking in relation to this issue.
Shiftwork
Under sub-clause 12.4i of the Agreement, a shift starting between 4am and 5am is considered a morning shift, which would attract a shift allowance of $30 per shift. Under sub-clauses 16.2 and 16.3 of the 2017 Victorian Agreement, a shift starting between 4am and 5am is a night shift, which currently attracts a greater shift allowance. I found that this change was not clearly explained to employees. Lifeblood has provided a draft undertaking in relation to this issue.
NES Issues
Clause 5.1 of the Agreement provides:
This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit or entitlement, the NES provision will apply to the extent of the inconsistency. The NES is available on the FWC website ( and the Lifeblood Intranet site.
In the decision I noted that clause 5.1 addresses the following issues raised by VAHPA that some provisions of the Agreement are inconsistent with the NES:
a.subclause 17.2 of the Agreement states in relation to personal leave that ‘It is understood that in some circumstances of unplanned leave, notice cannot be provided before the commencement of a shift, and this will be taken into consideration.’ Under s.107(2)(a) of the Act, an employee must give notice to the employer as soon as practicable, which may be a time after the personal leave has started.
b.subclause 17.15 of the Agreement states that where an employee wants to take personal leave while on annual leave, they can ‘request’ to have this period recredited to their annual leave. Under s.89(2) of the Act, as long as an employee provides the necessary notice and evidence, Lifeblood is required to recredit the personal leave;
c.subclause 18.3 of the Agreement indicates that where an employee is not able to give notice of taking compassionate leave prior to a shift, this ‘will be taken into consideration’. Under s.107(2)(a) of the Act, an employee must give notice to the employer as soon as practicable, which may be a time after the compassionate leave has started;
d.subclause 18.7 of the Agreement states that a request for compassionate leave will not be unreasonably refused. However, under s.105 of the Act, as long as appropriate notice and evidence is provided, Lifeblood must give employees compassionate leave and there is no discretion for Lifeblood to refuse;
e.subclauses 20.6 and 20.7 of the Agreement state that an employee who would ‘regularly be rostered’ to work on the day of a public holiday is entitled to payment for their ordinary hours on the day. Under s.116 of the Act, an employee is entitled to be paid for any ordinary hours they would have worked on the day, even if they are not regularly rostered on that day of the week;
f.subclause 21.3 of the Agreement states that an employee has to give 10 weeks’ notice of taking parental leave, except in exceptional circumstances. Under s.74 of the Act, an employee is required to give 10 weeks’ notice, except where that is not practicable, in which case they must give notice as soon as practicable;
g.subclause 22.5 of the Agreement states that an employee is expected to provide reasonable notice of a request to take annual leave. This is not a requirement under the Act. Under the Act, an employee can request annual leave at any time and the employer cannot unreasonably refuse the request under s.88(2);
h.subclause 22.7 states that requests for Annual Leave are at the discretion of Lifeblood and in line with operational requirements. This is not the case as Lifeblood cannot unreasonably refuse a request under s.88(2) of the Act, as their own wording in sub-clause 22.8 states; and
in clause 26 of the Agreement in relation to jury service, an employee is only entitled be paid by Lifeblood the difference between what they get as payment from the Victorian Government for jury service and what they would have received from Lifeblood as earnings for their ordinary hours had they not been performing jury service – that is overtime is excluded. However, under section 112 of the Act, state and territory laws in relation to community service, which includes jury duty, are not excluded by the operation of the Act, meaning the Juries Act 2000 (Vic) applies. Under section 52 of the Juries Act 2000 (Vic) an employee undertaking jury service is entitled to be paid by Lifeblood the difference between what they get as payment from the Victorian Government and what they could reasonably expect to have received from Lifeblood as earnings for that period had they not been performing jury service – that is payment is not just limited to ordinary hours.
Section 190 Undertakings
Lifeblood provided written undertakings which address the BOOT and genuine agreement issues raised by the Commission. I have sought the views of each person who the Commission knows is a bargaining representative for the Agreement in relation to the undertakings. A copy of the undertakings is attached as Attachment 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. The undertakings are taken to be a term of the Agreement.
Section 183 Bargaining Representatives
The HSU, CPSU, APESMA, ASU and UWU being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want to be covered by the Agreement.
In accordance with s.201(2), I note that the Agreement covers the HSU, CPSU, APESMA, ASU and UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2025. The nominal expiry date of the Agreement is 30 September 2026.
DEPUTY PRESIDENT
[1] [2025] FWC 993
Printed by authority of the Commonwealth Government Printer
<AE528831 PR786859>
0
0
0