Central Healthcare Services Pty Ltd

[2022] FWCA 821

[2022] FWCA 821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Central Healthcare Services Pty Ltd

(AG2021/8941)

Central Healthcare Services Pty Ltd (NSW) Enterprise Agreement 2021

Pharmaceutical industry
DEPUTY PRESIDENT EASTON	SYDNEY, 8 MARCH 2022

Application for approval of the Central Healthcare Services Pty Ltd (NSW) Enterprise Agreement 2021.

1. Central Healthcare Services Pty Ltd (the Employer) has made an application for the approval of the Central Healthcare Services Pty Ltd (NSW) Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

   • Clause 16.2(a) – Personal Leave (Proof of Illness)
   • Clause 18.3 – Substitution of Public Holidays by agreement
   • Clause 22.2(c) – Termination (Casual Employees)
   • Clause 24(c) – Abandonment of Employment 

1. Noting the undertaking provided by the Employer, and the NES precedence clause in the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers’ Union (UWU) and Shop, Distributive and Allied Employees Association (SDA) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the UWU and SDA.

1. The SDA and the UWU raised a number of matters that they said required undertakings by the Employer and/or require undertakings in more favourable terms than the Employer was prepared to give.

1. The Unions say that some terms of the Agreement are less favourable to employees compared to the underpinning award, and/or they are generally detrimental or unreasonable terms. The provisions of concern include clause 7.4 (part-time employment and the predictability of hours), clause 9 (exclusivity and restrictions on additional employment), clause 14 (first aid training), clause 15.3 (direction to take leave) and clause 21 (essential medicines) and clause 22 (termination – deductions). It is not necessary to provide comprehensive analysis of each concern suffice to say that for most of the concerns the unions raise a potential relative disadvantage if certain conditions applied. The Unions submit that these matters can be addressed by the Employer giving better or further undertakings.

1. The Employer disputes parts of the analysis advanced by the Unions, and otherwise submits that the BOOT is not a line-by-line analysis and that it is permissible to include conditions less favourable than the underpinning award so long as employees are better off “overall”.

1. I have considered each of the matters raised by the Unions and recognise that the value, or potential value, of each provision is not readily calculable. I have also considered the many aspects of the Agreement that provide significantly superior conditions compared to the underpinning award. I am therefore satisfied that the Agreement passes the better off overall test.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 March 2022. The nominal expiry date of the Agreement is 8 March 2026.

DEPUTY PRESIDENT

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Annexure A