Diabetes Victoria

[2023] FWCA 1439

[2023] FWCA 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Diabetes Victoria

(AG2023/1252)

DIABETES VICTORIA AND MEDICAL SCIENTISTS ASSOCIATION OF VICTORIA ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 19 MAY 2023

Application for approval of the Diabetes Victoria and Medical Scientists Association of Victoria Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Diabetes Victoria and Medical Scientists Association of Victoria Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Diabetes Victoria (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 May 2023.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Personal Leave (Accrual) – Clause 49.4(a)(I) of the Agreement appears to provide that an employee will accrue up to 7 hours and 30 minutes (12 days) for each month of service in the first year of service. This appears to suggest that employees will accrue personal leave on a monthly basis in the first year of service, inconsistent with s.96(2) of the Act which states that personal leave accrues progressively during a year of service.

1. Clause 8.2 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an employee's entitlement under the NES. For the avoidance of doubt, the NES prevails to the extent that any aspect of this Agreement would otherwise be detrimental to an employee. No extra claims”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 16 May 2023. The undertaking deals with the following topics:

·   The Applicant undertakes to amend Clause 51.1 (Paid Leave Entitlement) and Clause 51.2 (Unpaid Compassionate Leave) of the Agreement to include an entitlement to two days compassionate leave, when:

oa child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child bad been born alive; or

othe employee, or the employee’s spouse or de facto partner, has a miscarriage.

·   The Applicant undertakes that, despite Clause 45.3 (Public Holidays) of the Agreement, an Employee and the Employer may agree to substitute another day (or part-day) for a public holiday (or part-day) under the NES or this Agreement. This will be recorded in writing.

·   The Applicant undertakes that Diabetes Victoria will not employee Trainees under this Agreement.

·   The Applicant undertakes that, despite Clause 24 of the Agreement, the minimum period a casual employee will be engaged is 3 hours per day.

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 representative(s) that responded, supported 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. The Health Services Union, 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 30 June 2024.

COMMISSIONER

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