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

Annexure A

In the Fair Work Commission, BreastScreen Victoria Inc sought approval of its proposed Enterprise Agreement 2017-2020. The applicant, a statutory body established under the Public Health and Wellbeing Act 2008, provides breast screening services in Victoria. The respondent, the Health Services Union of Australia, represented employees who contested the terms of the proposed agreement. The dispute centred on various clauses, including those relating to classification, remuneration, and shift penalties. The Commission had to determine whether the agreement was appropriate for approval under the Fair Work Act 2009.

The legal issues before the Commission involved whether the proposed terms of the agreement met the requirements of the Fair Work Act, particularly whether the agreement provided for a fair and reasonable outcome for both employers and employees. The Commission had to consider if the agreement provided for adequate protections and entitlements for employees, including classification and remuneration provisions. Additionally, the Commission had to assess if the agreement allowed for the efficient operation of BreastScreen Victoria Inc and whether it provided for a fair and reasonable outcome for both parties.

After reviewing the submissions from both parties and considering the relevant legal framework, the Commission found that the proposed agreement was appropriate for approval. The Commission concluded that the agreement provided for fair and reasonable outcomes for both parties, including adequate protections and entitlements for employees. The Commission also found that the agreement allowed for the efficient operation of BreastScreen Victoria Inc. Therefore, the Commission approved the proposed Enterprise Agreement 2017-2020.

The final orders of the Commission included the approval of the BreastScreen Victoria Inc Enterprise Agreement 2017-2020, subject to certain modifications. The modifications included changes to the classification and remuneration provisions to ensure that employees received fair and reasonable outcomes. Additionally, the Commission made modifications to the shift penalties provisions to ensure that they were fair and reasonable. The approved agreement was to commence on the first day of the first pay period following the date of the decision and was to remain in force until 30 June 2020 or until a new agreement was approved.

BreastScreen Victoria Inc

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established