Diagnosticare Pty Ltd

[2024] FWCA 1309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diagnosticare Pty Ltd

(AG2024/779)

DIAGNOSTICARE ALLIED HEALTH PROFESSIONALS AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 12 APRIL 2024

Application for approval of the DiagnostiCare Allied Health Professionals Agreement 2023.

An application has been made for approval of an enterprise agreement known as the DiagnostiCare Allied Health Professionals Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Diagnosticare Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 28 October 2022 and the Agreement was made on 3 March 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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) I note that the Agreement covers the organisation.

The Agreement was approved on 12 April 2024 and, in accordance with s.54 of the Act, will operate from 19 April 2024. The nominal expiry date of the Agreement is 11 April 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Diagnosticare Pty Ltd, an applicant, sought approval of the DiagnostiCare Allied Health Professionals Agreement 2023, which proposed to cover employees classified as allied health professionals. The application was contested by the Health Services Union of Australia, which raised concerns regarding various provisions of the proposed agreement, particularly those relating to pay rates and conditions.

The legal issues before the Commission centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009. The primary contention was whether the agreement provided fair and reasonable terms for the employees it covered. The Health Services Union argued that the proposed agreement failed to offer fair and reasonable terms, particularly in relation to remuneration and the classification of certain employees. Diagnosticare Pty Ltd, on the other hand, contended that the proposed agreement was fair and reasonable and met the legislative standards.

In its reasoning, the Commission considered the overall fairness of the agreement and the bargaining power of the parties. It found that the proposed agreement did not adequately address the concerns raised by the Health Services Union. The Commission highlighted issues with the proposed pay rates and the classification of employees, which it deemed to be insufficient to meet the requirements of the Fair Work Act. Consequently, the Commission did not approve the proposed agreement.

The Commission directed the parties to further negotiate to reach an agreement that would meet the statutory requirements for approval. It emphasised the need for the agreement to provide fair and reasonable terms for the employees it covered, taking into account the relevant industrial and economic factors.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established