BreastScreen Victoria Inc

[2018] FWCA 6266

[2018] FWCA 6266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BreastScreen Victoria Inc
(AG2018/1939)

BREASTSCREEN VICTORIA INC ENTERPRISE AGREEMENT 2017-2020

Health and welfare services
COMMISSIONER MCKINNON	MELBOURNE, 10 OCTOBER 2018

Application for approval of the BreastScreen Victoria Inc Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the BreastScreen Victoria Inc Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BreastScreen Victoria Inc (BreastScreen Victoria). The Agreement is a single enterprise agreement.

[2] A written undertaking has been given in accordance with s.190. A copy of the undertaking is attached in Annexure A.

[3] The Health Services Union of Australia (HSU) objects to the undertaking on the basis that it is an unlawful term. It says the undertaking would permit BreastScreen Victoria to terminate employees in contravention of the protection from dismissal during temporary illness or injury in regulation 3.01 of the Fair Work Regulations 2009. I do not accept the submission.

[4] On a fair reading of the undertaking, BreastScreen Victoria cannot only treat an employee has having abandoned their employment in the limited circumstances prescribed. All of the conditions in that clause must be met. That is, BreastScreen Victoria must have made due enquiries and after having done so, must remain reasonably unaware of any reasonable grounds for absence. The absence must be unauthorised and be for more than ten working days. The employee must have not contacted BreastScreen Victoria to explain their absence, unless they were prevented from making contact because of circumstances beyond the employee’s control.

[5] Regulation 3.01 requires employees to provide a medical certificate or statutory declaration for their illness or injury within 24 hours of absence or such longer period as is reasonable in the circumstances. In my view, that requirement is not offended by the proposed undertaking. Consistent with regulation 3.01, it does not apply if an employee has contacted BreastScreen Victoria to provide an explanation for their absence. It also does not apply if an employee has not contacted BreastScreen Victoria due to circumstances beyond their control. It does not apply if BreastScreen Victoria could reasonably, after due inquiry, have been aware of any reasonable grounds for absence. It will operate in conjunction with clause 33 of the Agreement, which provides for employees to be absent on sick leave without medical evidence for up to two days, and prevents BreastScreen Victoria from terminating an employee during sick leave with the object of avoiding their sick leave obligations.

[6] I am satisfied that the undertaking 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.

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

[8] The HSU, 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE500390  PR701174>

Annexure A