BreastScreen Victoria Inc

[2022] FWCA 696

[2022] FWCA 696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BreastScreen Victoria Inc

(AG2022/436)

BreastScreen Victoria Inc Enterprise Agreement 2021-2024

Health and welfare services
COMMISSIONER MCKINNON	SYDNEY, 7 MARCH 2022

Application for approval of the BreastScreen Victoria Inc Enterprise Agreement 2021-2024.

1. BreastScreen Victoria Inc has applied for approval of a single enterprise agreement known as the BreastScreen Victoria Inc Enterprise Agreement 2021-2024 (the Agreement).

1. The Health Services Union was a bargaining representative for the Agreement. It supports the Agreement’s approval and wants to be covered by it. It has not taken a position in relation to whether the Agreement passes the better off overall test. It has however raised three potential detriments for consideration in that regard. These relate to redundancy, annual close down and employee notice of termination.

1. The relevant modern award for the purposes of the better off overall test is the Health Professionals and Support Services Award 2020. In relation to redundancy, the Union submits that there is potential for an unincorporated Victorian Government redundancy policy to affect employee entitlements under the Agreement in circumstances where there is no safety net contained in the Agreement. As the Union notes, however, clause 4 of the Agreement ensures that the National Employment Standards apply where more beneficial than terms of the Agreement. The Award entitlement to redundancy pay is that provided in the National Employment Standards. No issue in relation to the better off overall test arises.

1. Annual close down is dealt with in clause 34.15 of the Agreement. I accept that there is no equivalent provision in the Award for organisations such as BreastScreen Victoria, which is neither a dental nor a medical practice. Hypothetically, employees may be worse off during an annual close down under the Agreement compared to the Award, if employees do not have sufficient annual leave to cover the period and are instead stood down without pay.

1. The requirement for employees to provide notice of termination is also potentially less beneficial for employees with 1 year or less of service under the Agreement than the Award, because they are required to give 2 weeks’ notice of termination rather than 1.

1. These detriments must be considered in light of the various benefits for employees under the Agreement compared to the Award, including rates of pay between 10.80% and 84.51% higher than the Award, 2% annual wage increases, more favourable Saturday penalties despite a wider span of hours and a stability payment of $2,000.

1. I am satisfied that the Agreement passes the better off overall test. I am also satisfied that each of the other requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Agreement is approved and will operate from 14 March 2022. The nominal expiry date of the Agreement is 30 June 2024.

1. The Agreement covers the Health Services Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE515147  PR738758>