Diagnostic Services Pty Ltd Summary

[2022] FWCA 4308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diagnostic Services Pty Ltd

(AG2022/4842)

Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd Enterprise Agreement 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 9 DECEMBER 2022

Application for approval of the Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Diagnostic Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 28 November 2022.

On 30 November 2022, I conducted a telephone conference 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.

The Applicant has submitted an undertaking in the required form dated 7 December 2022. The undertaking deals with the following topics:

· An employee whose ordinary hours of work includes hours between midnight and 7.00am shall be paid a loading of 25% of the hourly rate of pay for all hours worked therein and a loading of 15% for all hours worked between 7.00pm and midnight, unless the hours are overtime, in which case overtime rates will apply.

· Clause 19.1(a) of the Agreement is amended such that overtime will be paid to a part-time employee who works in excess of their ordinary hours (except where agreement has been reached to vary such hours), works in excess of 10 hours per shift and/or works in excess of an average of 38 hours per week in a fortnight or 4-week period.

· An employee who works pre-approved/authorised overtime shall be paid a minimum of 15 minutes at overtime rates for all time so worked.

· The employer will provide a copy of any individual flexibility arrangement (IFA) to the employee within 14 days.

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 that responded did not object to the undertaking.

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.

As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

The Health Services Union (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.

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.

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 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was made by Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd, seeking approval for their Enterprise Agreement 2021. The agreement in question was entered into between the two companies and the Australian Medical Association (Victorian Branch). The dispute centred around the procedural fairness and compliance of the agreement with the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary legal standards for approval and implementation.

The central legal issues addressed by the Commission included whether the process leading to the agreement's formation was fair and whether the agreement itself contained all the required terms and provisions as mandated by the Fair Work Act. Specifically, the Commission examined whether there was proper consultation with the relevant employees and whether the agreement adequately covered all the mandated terms. Furthermore, the Commission assessed whether the agreement adhered to the statutory requirements for enterprise agreements under the Act.

The Fair Work Commission, after reviewing the evidence and submissions from the parties, concluded that the process leading to the agreement was fair, and the agreement was compliant with the Fair Work Act. The Commission found that the process involved adequate consultation and that the agreement contained all the required terms and provisions. Consequently, the Commission approved the Enterprise Agreement 2021, finding it to be valid and enforceable. The approval ensures that the agreement can now be implemented, providing a clear framework for the employment conditions of the relevant employees.

The Fair Work Commission's decision was final, and the Enterprise Agreement 2021 was approved for implementation. This outcome allows the parties to proceed with the terms of the agreement, which now govern the employment conditions of the relevant employees. The approval of the agreement ensures legal certainty and stability in the employment relationship between the companies and their employees.

Diagnostic Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established