Clinical Laboratories Pty Ltd T/A Australian Clinical Laboratories

[2023] FWCA 2105

[2023] FWCA 2105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Clinical Laboratories Pty Ltd T/A Australian Clinical Laboratories

(AG2023/1946)

CLINICAL LABORATORIES– SOUTH AUSTRALIAN OPERATIONS ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER YILMAZ	MELBOURNE, 11 JULY 2023

Application for approval of the Clinical Laboratories– South Australian Operations Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Clinical Laboratories– South Australian Operations Enterprise Agreement 2023 (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.

1. 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.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Agreement lodged contained a number of errors concerning the rates of pay of seven classifications contained in Appendix 4. On 27 June 2023, the Applicant filed an application to amend the Agreement due to an administrative error whereby the Agreement that went to vote contained rates that were not intended. The application attached an amended version of the Agreement correcting the errors, including a document identifying through track changes the actual errors and correction explaining that each of the incorrect rates were not intended. I observe that each of the corrected rates reflects an increase and that the increase does not disadvantage employees covered by the Agreement. I further observe that the document filed correcting the errors was signed by each of the bargaining representatives noting their agreement to the amendments to the rates contained in Appendix 4. The Applicant has sought corrections pursuant to s.586 of the Act. In the circumstances, I consider it appropriate to vary the Agreement to correct the errors and it is appropriate to do so pursuant to s.218A rather than s.586, as the errors were voted on and formed the Agreement made. I am satisfied that the correction is to the Agreement rather than a document intended to be captured by s.586 of the Act, and I am further satisfied that the Applicant and bargaining representatives have not only indicated agreement but that the correction is necessary due to an administrative error when the Agreement was made.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australian Nursing and Midwifery Federation and Health Services Union being bargaining representatives for the Agreement, 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 these organisations.

1. The Agreement is approved and in accordance with s.54, will operate from 18 July 2023. The nominal expiry date of the Agreement is 18 July 2027.

COMMISSIONER

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Annexure A