Healius Pathology Pty Ltd T/A Queensland Medical Laboratories & Tasmanian Medical Laboratories
[2025] FWCA 319
•28 JANUARY 2025
| [2025] FWCA 319 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Healius Pathology Pty Ltd T/A Queensland Medical Laboratories & Tasmanian Medical Laboratories
(AG2024/4368)
QML/TML PATHOLOGY ENTERPRISE AGREEMENT 2024
| Health and welfare services | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 28 JANUARY 2025 |
Application for approval of the QML/TML Pathology Enterprise Agreement 2024 – enterprise agreement approved
An application has been made for approval of an enterprise agreement to be known as the QML/TML Pathology Enterprise Agreement 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Healius Pathology Pty Ltd T/A Queensland Medical Laboratories & Tasmanian Medical Laboratories (Employer). The Agreement is a single enterprise agreement.
The following were employee bargaining representatives for the bargaining and making of the Agreement:
a) Health Services Union (HSU);
b) Australian Nursing and Midwifery Federation (ANMF);
c) Australian Municipal, Administrative, Clerical and Services Union (ASU);
d) United Workers’ Union (UWU);
e) Ms Bronwyn Choquenot;
f) Ms Bec Luxton (of the Phlebotomists Council of Australia).
Undertakings
The Employer has provided written undertakings dated 28 January 2025. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the employee bargaining representatives have been consulted about these undertakings, that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Health Professionals and Support Services Award 2020 (HPSS Award)), and that the undertakings will not result in substantial changes to the Agreement.
Objections to approval
The were various issues or concerns raised as to the approval of the Agreement by the Commission, and by union and employee bargaining representatives. Ultimately the issues or concerns raised by the union bargaining representatives were resolved, including pursuant to the undertakings dated 28 January 2025 provided by the Employer.
At 8:31am on 24 January 2024, having already received submissions from the Applicant and employee bargaining representatives, I advised the parties (via Chambers email), of the Commission’s remaining list of issues or concerns in relation to the approval of the Agreement. I provided the parties with the opportunity to add to that list of Commission’s issues or concerns prior to the hearing (commencing at 10am AEDT on 28 January 2025). At 1:24pm on 24 January 2025, Ms Luxton advised Chambers via email of one further issue to be added to the Commission’s list. The final list of issues or concerns in relation to the approval of the Agreement now totalled five matters.
Ms Luxton did not attend the hearing on 28 January 2025. Post the hearing, at 1:44pm on 28 January 2025, Ms Luxton filed further written submissions raising objections to the approval of the Agreement beyond the five issues dealt with at the hearing (and to which the Applicant has had no opportunity to respond to). In any event, I do not accept that there is any basis to support the additional issues or concerns raised by Ms Luxton in her 1:44pm email of 28 January 2025.
Of the five issues or concerns in relation to the BOOT that were to be dealt with at the hearing, I find that four of the five issues or concerns (in relation to extended span of hours, laboratory assistant pay rates, part-time employment shift variations, and pay point progression for part-time and casual employees) present no concerns from a BOOT perspective (by reference to the test under s193 of the Act, and the undertakings provided).
As to the fifth issue, concerning potential temporary business shutdowns in the last week of December and the month of January each year (clause 20.15), I am equally satisfied (noting the undertaking provided), that clause 20.15 is not an issue or concern that prevents approval of the Agreement. A similar provision to clause 20.15 is contained in some 78 modern awards,[1] including the HPSS Award (the latter limited to dental or medical practices). I concur with the Applicant’s submissions that this limitation under the HPSS Award is not a barrier to its extension or application to the Applicant’s enterprise (including its pathology practices) under an enterprise agreement.[2] Further, any disputes in relation to clause 20.15, in relation to consultation and/or implementation and/or NES interaction, can be dealt with via the dispute settlement procedure under the Agreement.
Coverage of employee organisation(s)
The HSU, UWU, ANMF and the ASU, being registered employee organisations (and bargaining representatives for the Agreement), have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the foregoing employee organisations.
Workplace delegates’ rights term
Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term contained in the HPSS Award is taken to be a term of the Agreement.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.
I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2025. The nominal expiry date of the Agreement is 30 June 2026.
DEPUTY PRESIDENT
ANNEXURE A
[1] See 4 yearly review of modern awards - Plain language - Shutdown provisions [2022] FWCFB 246.
[2] Applicant’s Submissions, 10 January 2025, at [23]-[25].
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