Clinpath Laboratories Pty Ltd T/A Clinpath Pathology

[2022] FWCA 1471

[2022] FWCA 1471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Clinpath Laboratories Pty Ltd T/A Clinpath Pathology

(AG2022/999)

The Clinpath Laboratories - Enterprise Agreement 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 3 MAY 2022

Application for approval of The Clinpath Laboratories - Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as The Clinpath Laboratories - Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Clinpath Laboratories Pty Ltd T/A Clinpath Pathology (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 7 April 2022.

1. On 11 April 2022 and 22 April 2022, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 2 May 2022. The undertaking deals with the following topics:

·   The Applicant has inserted a National Employment Standards (NES) precedence clause.

·   Subject to clauses 12.2 and 12.4 of the Agreement, an employee classified under the Agreement as a Chief Scientist Grade 5 Level 3 who completes 1950 hours of service at that classification grade and level will be paid no less than the minimum hourly rate prescribed by the Health Professionals and Support Services Award 2020 (the Award) for a Health Professional Employee Level 4 at Pay Point 4.

·   The provisions of clause 25.3(a) of the Award will apply in lieu of clause 23.1 of the Agreement for any employee who is a shiftworker within the meaning of the Award, to the extent that the Award provides a more beneficial entitlement for that employee. This undertaking does not apply to any employee whose base rate of pay under the Agreement is more than 15% above the Award base rate of pay.

·   The company will apply (as applicable) clauses 24.1(a)(i), 24.1(b)(i) and 24.1(b)(iii) of the Award in respect of the overtime rates to be paid to full-time or part-time day workers ‘for authorised hours worked beyond 28 hours a week’ under clause 21.1 of the Agreement.

·   The company will apply clauses 10.2 and 10.3 of the Award for the purpose of clause 5.3 of the Agreement concerning part-time employees, subject to clauses 14(b) and (c) of the Award.

·   Where an employee would be classified as ‘Support Services’ pursuant to the Award, the company will apply the provisions of clauses 18.1 and 18.2 of the Award with respect to higher duties allowances in lieu of clause 16 of the Agreement.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·   Clause 30.5 of the Agreement provides that the employer may deduct from the employee's final pay, the amount of additional leave taken in advance that has not yet accrued at time of termination. Clause 42.5 of the Agreement provides that if an employee fails to give the required notice of termination, the company may withhold from any monies due to the employee under the Act. Both these clauses may restrict an employee’s entitlements under the NES.

·   Clause 38.4 of the Agreement provides that the company will pay the employee in lieu of the amount of annual leave cashed out at a rate that is no less than the rate of the employee's rate of pay. Section 93(2)(c) of the Act, however, provides that the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. It seems unclear whether under clause 38.4 of the Agreement an employee would be paid out their annual leave loading as required by s. 93(2)(c) of the Act.

·   Schedule C of the Agreement provides for paid carer’s leave where a member is ill or has an unexpected emergency, however, does not refer to an injury of the member as being covered. This appears to be inconsistent with s.97 of the Act.

1. The Applicant has provided an effective NES precedence undertaking, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence undertaking, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. Upon my request, the Applicant provided further information in respect of the number of casual employees who cast valid votes. The Applicant was able to inform my Chambers that of the 472 employees who cast a valid vote, 89 of those employees were casual, and 87 of those casual employees were engaged at some point during the access period. Whilst this shows that there were two employees whose votes were counted despite them not being entitled to vote, given that 267 out of 474 employees who cast a valid vote voted in favour of the Agreement being approved, I am satisfied that the inclusion of the two casual employees did not substantially affect the outcome of the vote.

1. After the conference on 22 April 2022, the Health Services Union (HSU), raised a further issue in relation to when rates would be paid to casuals who worked overtime on a weekend. On 29 April 2022, the Applicant clarified the position of the company as summarised below:

·    Clauses 24.1 and 24.2 of the Agreement state that for work performed on Saturday or Sunday, an employee will be paid a loading of 50% or 100% respectively.

·   Clause 21.2 states that overtime rates are time and a half for the first three hours and double time thereafter, whilst clause 21.4 states that casual employees who work overtime will be paid both the casual loading and overtime penalty.

·   In practice, for overtime worked on a Saturday, the company pays its casual employees at time and a half for the first three hours and double time for all hours thereafter. For overtime worked on a Sunday, the company pays its casual employees at double time for all hours worked. For both Saturday and Sunday work, the casual loading is applied in aggregate (1 + casual loading + Saturday/Sunday loading).

1. Upon receipt of this further material from the Applicant, I am satisfied that the relevant clauses do not pose a concern to the better off overall test (BOOT).

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 March 2025.

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