Clinical Laboratories Pty Ltd T/A Australian Clinical Laboratories

[2021] FWCA 2575

[2021] FWCA 2575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Clinical Laboratories Pty Ltd T/A Australian Clinical Laboratories
(AG2021/4473)

AUSTRALIAN CLINICAL LABS (VICTORIA) AND HEALTH SERVICES UNION MEDICAL SCIENTISTS AND TECHNICIANS ENTERPRISE AGREEMENT 2021 -2025

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 7 MAY 2021

Application for approval of the Australian Clinical Labs (Victoria) and Health Services Union Medical Scientists and Technicians Enterprise Agreement 2021 -2025.

[1] An application has been made for approval of an enterprise agreement known as the Australian Clinical Labs (Victoria) and Health Services Union Medical Scientists and Technicians Enterprise Agreement 2021 -2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Clinical Laboratories Pty Ltd T/A Australian Clinical Laboratories. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure 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.

[3] 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.

[4] The voting process for the Agreement commenced on 16 March 2021, therefore the 7-day access period started on the first full day after 8 March 2021. Employees were provided with the voting information on 9 March 2021. As such, the Employer did not provide employees with the voting information by the start of the access period as required under s.180(3). The Employer provided submissions in relation to this error. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Furthermore, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] The Health Services Union of Australia, 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.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 58.5(b), 58.7(c) and 58.12 – Personal/Carer’s Leave

•  Clause 62.1(f) and 62.10 – Long Service Leave

•  Clause 63.2(b)(i), 63.3(f)(i), 63.8(a) and 63.8(b) – Parental Leave

•  Clause 69.5(a)(i) – Public Holidays.

However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2021. The nominal expiry date of the Agreement is 17 March 2025.

COMMISSIONER

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Annexure A