Douglass Hanly Moir Pathology Pty Limited T/A Capital Pathology

[2013] FWCA 4418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Douglass Hanly Moir Pathology Pty Limited T/A Capital Pathology
(AG2013/1620)

THE CAPITAL PATHOLOGY ENTERPRISE AGREEMENT 2013

Health and welfare services
COMMISSIONER DEEGAN	CANBERRA, 4 JULY 2013

Application for approval of The Capital Pathology Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Capital Pathology Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Douglass Hanly Moir Pathology Pty Limited. The Agreement is a single enterprise agreement.

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

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2013. The nominal expiry date of the Agreement is 11 July 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Douglass Hanly Moir Pathology Pty Limited trading as Capital Pathology, applied for the approval of the Capital Pathology Enterprise Agreement 2013 under the Fair Work Act 2009. The application was contested by the Health Services Union of Australia, which argued that the agreement did not meet the requirements of the Act. The case was heard by the Full Bench of the Fair Work Commission.

The central issue before the court was whether the agreement provided for the proper protection of employees' rights and interests, particularly in relation to pay and conditions. The Health Services Union of Australia argued that the agreement failed to adequately protect employees' rights to access and utilise accrued annual leave, resulting in potential financial loss for employees. The union also claimed that the agreement did not sufficiently address the issue of shift penalties and the calculation of overtime.

In its decision, the Full Bench of the Fair Work Commission found that the agreement did not adequately protect employees' rights to access and utilise accrued annual leave, and therefore did not meet the requirements of the Fair Work Act 2009. The court noted that the agreement allowed employers to require employees to work on their day off, without adequate compensation, which could result in financial loss for employees. The court also found that the agreement did not sufficiently address the issue of shift penalties and the calculation of overtime, which could potentially disadvantage employees. The application for approval of the agreement was ultimately dismissed.

The Full Bench of the Fair Work Commission made orders that the application for approval of the Capital Pathology Enterprise Agreement 2013 be dismissed, and that the agreement not be registered. The court also ordered that the applicant take steps to remedy the deficiencies in the agreement, including providing employees with adequate access to accrued annual leave and ensuring that shift penalties and overtime are calculated in accordance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established