Dorevitch Pathology T/A Healius Pathology Pty Ltd
[2023] FWCA 2142
•12 JULY 2023
| [2023] FWCA 2142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Dorevitch Pathology T/A Healius Pathology Pty Ltd
(AG2023/1913)
HEALIUS PATHOLOGY LTD T/A DOREVITCH PATHOLOGY SCIENTISTS AND TECHNICIAN EMPLOYEES ENTERPRISE AGREEMENT 2023 - 2027
| Health and welfare services | |
| COMMISSIONER YILMAZ | MELBOURNE, 12 JULY 2023 |
Application for approval of the Healius Pathology Ltd T/A Dorevitch Pathology Scientists and Technician Employees Enterprise Agreement 2023 - 2027
An application has been made for approval of an enterprise agreement known as the Healius Pathology Ltd T/A Dorevitch Pathology Scientists and Technician Employees Enterprise Agreement 2023 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dorevitch Pathology T/A Healius Pathology Pty Ltd. The Agreement is a single enterprise agreement.
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.
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.
The Agreement lodged contained a number of administrative errors in part caused by the conversion of the Agreement to PDF format. On 23 June 2023, the Applicant filed an application to amend the Agreement due to administrative errors. 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. The email advised the following changes were made:
‘Clause 13.6 (redundancy): The second part of the clause, which provides the explanation of the term “service” for the purposes of this agreement, has been omitted. However, this clause should continue to read that ‘…and service means service with Dorevitch Pathology and includes prior service with Dorevitch Pathology Pty Ltd or organizations which have been at any time commercially acquired or otherwise wholly owned by Dorevitch Pathology.’
Clause 16.2 (Travel Allowance): Contains a reference to a non-existent clause (Cl.16.3.3). This reference should be to clause 16.2.2 instead.
Clause 30 (Public Holidays): The reference to Queen’s Birthday should be corrected to King’s Birthday.
Clause 31.7 (Personal Leave): Words have been omitted from the initial section of the clause. The clause should be interpreted as follows, reflecting Dorevitch’s intention: An employee will not be entitled to single days of pay personal leave on more the three (3)
occasions in any one year of services unless the employee produces a medical certificate from a registered medical practitioner, dentist, physiotherapist, psychologist or psychiatrist.
Clause 35.6.1 (Long Service Leave): Contains a reference to “Her” Majesty’s Forces. This should be corrected to “His” Majesty’s Forces.
Appendix A (Schedules): The specified Meal Allowance amounts for Technicians are inaccurate and lower than the intended payment. The correct amounts should align with the meal allowance granted to the Scientists.
Appendix B (Classification Structure): Reference to the scope of work for Laboratory Technicians. This provision should read: Provided always that medical laboratory technicians shall work within the scope of Medical Laboratory Technician competency standards as set by the Australian National Training Authority; *Medical Laboratory Technicians without an Associate Diploma, who gained a recognised certificate qualification prior to the introduction of the Associate Diploma course, may be eligible for this grade.’
I observe that the amended Agreement provides clarity and also provides a more favourable meal allowance for employees in the Technician classifications. I further observe that the Health Services Union (HSU) provided an email later that day which confirmed their support for the amended Agreement. 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 formed part of 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.
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) I note that the Agreement covers the organisation.
The Agreement is approved and in accordance with s.54, will operate from 17 July 2023. The nominal expiry date of the Agreement is 1 April 2027.
COMMISSIONER
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Annexure A
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