Healius Pathology Pty Ltd T/A Western Diagnostic Pathology
[2025] FWCA 676
•24 FEBRUARY 2025
| [2025] FWCA 676 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Healius Pathology Pty Ltd T/A Western Diagnostic Pathology
(AG2024/4523)
WESTERN DIAGNOSTIC PATHOLOGY & HEALTH SERVICES UNION ENTERPRISE AGREEMENT 2024
| Health and welfare services | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 24 FEBRUARY 2025 |
Application for approval of the Western Diagnostic Pathology & Health Services Union Enterprise Agreement 2024 – enterprise agreement approved
An application has been made for the approval of an enterprise agreement to be known as the Western Diagnostic Pathology & Health Services Union 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 Western Diagnostic Pathology (Employer). The Agreement is a single enterprise agreement.
NERR issue
There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the Notice of Employee Representational Rights (NERR) provided to relevant employees, and the title of the Agreement filed with the Commission (as approved by relevant employees).[1] Having regard to the submissions of the Employer provided on 10 January 2025, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
Amendments
Typographical and/or cross-referencing errors at clauses 3 (definition of shiftworker), 12.2.7, 12.4.3, 27.13.3, and 18.6.1 of the Agreement (in the version approved by relevant employees) have been identified. On 20 February 2024, the Employer filed with Chambers a clean and corrected version of the Agreement (reflecting relevant amendments). I am satisfied that these corrections and amendments should be made to the Agreement, and that it is appropriate to do so. Pursuant to s.218A(2)(b)(i) of the Act, I approve and make these corrections and amendments.
Undertakings
The Employer has provided written undertakings dated 19 February 2025. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I accept the undertakings and am satisfied 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.
Coverage of employee organisation(s)
The Health Services Union (HSU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.
Classification matching
The HSU has raised various objections to the approval of the Agreement on the grounds that the Agreement does not pass the better off overall test (BOOT). From a monetary perspective, I observe that the BOOT is conducted on the basis of a global analysis (i.e. as opposed to a line by line, pay rate by pay rate, or entitlement by entitlement, analysis).
For the purposes of the BOOT, the terms and conditions set out under the Agreement have been compared to those set out in the HPSS Award. The Agreement displaces and does not incorporate the HPSS Award.[3] Section 206 of the Act applies to the Agreement, such that:
“the base rate of pay payable to the employee under the agreement (the agreement rate ) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate ) if the modern award applied to the employee.”
Apart from the consideration and resolution of the matters set out below in paragraphs [9] to [14] of this decision, I am satisfied that all of the other BOOT objections made by the HSU[4] have been resolved, including pursuant to the written undertakings dated 19 February 2025.
The HSU contends that the Employer’s classification mapping between the HPSS Award and the Agreement is erroneous or incorrect for the following Agreement classifications:
a) Scientists Grades 2.1 to 2.5 and 3.1 to 3.4;
b) Shift Scientists Grades 1 to Grade 5; and
c) Multi-disciplinary Scientists Grades 1 to Grade 3.[5]
Putting to one side rates of pay, the Agreement contains more beneficial terms than the HPSS Award (e.g. minimum recall for overtime, and weekend/shift penalties for full time and part time employees). In other words, if classifications under the Agreement are matched correctly to classifications under the HPSS Award, and the rates of pay for these classifications under the Agreement are equal to or better than those under the HPSS Award, employees will automatically be better off overall under the Agreement compared to the HPSS Award.
In terms of rates of pay, even if the HSU’s classification mapping in relation to Scientists Grades 2.1 to 2.5 and 3.1 to 3.4 be accepted, the rates of pay for those classifications (or Grades) under the Agreement still remain above HPSS Award rates of pay.[6] Further, to the extent that the HSU’s objection relates to pay point (or Grade) progression, the HSU has not answered the Employer’s Submissions on the topic.[7] I accept the contents of the Employer’s Submissions on the issue of pay point (or Grade) progression for Scientists Grades 2.1 to 2.5 and 3.1 to 3.4,[8] and concur that this issue does not ultimately result in relevant employees (in these Grades) to whom the Agreement applies being other than better off overall under the Agreement.
In relation to the HSU’s objections to the Employer’s classification mapping of Shift Scientists Grades 1 to Grade 5, and Multi-disciplinary Scientists Grades 1 to Grade 3, the HSU submits:
“20. The [HSU] says that even if the [HSU’S] mapping of Grade 1 Shift Scientists to commence at Health Professional – Level 3 of the Award is not accepted by the Commission, that the [Employer’s] mapping of Shift Scientists to commence for a Grade 1 Shift Scientist to Health Professional – Level 1 of the Award, is erroneous.
21. Shift Scientists at all increments, regardless of whether they are Grade 1 or Grade 5, are required to participate in routine and audit related quality activities, participate in training staff and maintain current scientific knowledge through professional development. These are all activities which align with at least the Health Professional – Level 2 definition under the Award (Health Professional and Support Services Award, Schedule A, clause A.2.2). This should be viewed in totality with the multidisciplinary work which is recognised at Health Professional – Level 3 of the Award (Health Professional and Support Services Award, Schedule A, clause A.2.3 (b)(iv)).
22. The [HSU] relies on its submissions in paragraph 21 in relation to Multi-Disciplinary Scientists.”[9]
The Employer makes the following submissions on the issue:
“15. Shift Scientists work in hospital laboratories, performing multi-disciplinary work. In practice, they are Grade 1 Scientists who are performing tests across multiple disciplines because they are working in a hospital laboratory, including being on call and rotating shift rosters. A Shift Scientist works under the supervision of a Laboratory Manager who manages budgets and other operational activities. The [Employer] does not agree that because multi-disciplinary work is referred to in Health Professional Level 3 in the Award that Shift Scientist must be mapped against Health Professional Level 3. Shift Scientists are not performing additional duties, are not practicing in isolation from other health professionals, are not responsible for feedback or appraisal of senior staff, and are not accountable for allocation and/or expenditure of resources of budgets. Nor are they responsible for the management of staff or a department or the laboratory. Although multidisciplinary work is recognised at Health Professional Level 3 in the Award, the [Employer] submits that the duties and responsibilities described in Level 3 are to be considered in totality.
16. A Shift Scientist Grade 1 does not require any prior experience and will be in a learning and development phase before progressing to a Shift Scientist Grade 2. A Shift Scientist Grade 1 will generally be a graduate. The equivalent classification in the Award is a Health Professional Level 1 who is regarded as entry level and in their initial years of experience. The [Employer] recognises that Shift Scientists perform multi-disciplinary work and maps a Grade 1 and Grade 2 to a Health Professional Level 1 Pay Point 3 and Pay Point 5 respectively. A Shift Scientist Grade 3 is mapped against a Health Professional Level 2 – Pay Point 2 as it is at that point a Shift Scientist is considered a more senior scientist. It is not a requirement that a Shift Scientist commence at Shift Scientist Grade 1. In accordance with Schedule 1 of the Agreement, the [Employer] can appoint an employee to a to a [sic] Shift Scientist Grade based on relevant industry experience (whether with the [Employer] or from another organisation).
17. Multi-Disciplinary Scientists (MD Scientists) perform similar work to Shift Scientists however are working in regional laboratories rather than hospitals. The mapping of MD Scientists is on the same basis as Shift Scientists and the [Employer] refers to and relies on its submissions in paragraphs 15 and 16 above for MD Scientists.”[10]
…
“11. In response to paragraphs 20 and 21 of the HSU Submission, the [Employer] says:
(a) the classification of an employee at the Shift Scientist Grade 1 classification in the Agreement is by appointment (S1.7, Schedule 1 Agreement page 36);
(b) a Shift Scientist Grade 1 in the Agreement requires “no prior experience” and is “undergoing Shift Scientist onboarding”;
(c) the Shift Scientist Grade 1 is on objective analysis aligned with the HPL 1 classification in the Award – they are an “entry level health professional and for initial years of experience” (Clause A.21(a) of the Award), will work under the direct supervision of a Scientist Grade 3 and be undergoing on an onboarding process;
(d) the only difference between a Shift Scientist Grade 1 and a Scientist Grade 1 in the Agreement is the location of work (a hospital laboratory) which means a Shift Scientist performs multi-disciplinary work, and is included on on-call and rotating shift rosters;
(e) the Shift Scientist Grade 1 is not expected or required to work independently and exercise judgement on routine matters, contribute to the evaluation and analysis of guidelines, policies and procedures as those are the requirements of a HPL 2 as described at A2.2(a) and (b) of Schedule A to the Award;
(f) the Shift Scientist Grade 1 is not expected or required to perform all (The HPL 3 classification performs all of those listed duties – see “and” at the end of A.2.3(b)(vi)) of the duties of a HPL 3 as described at A.2.3(b) of Schedule A to the Award;
(g) a full time Shift Scientist Grade 1 will automatically progress to Shift Scientist Grade 2 on completion of 6 months continuous service working in a hospital laboratory;
(h) the Shift Scientist Grade 2 on any objective analysis is aligned with the HPL 1 classification in the Award for the same reasons as a Shift Scientist Grade 1;
(i) the Shift Scientists Grades 3 – 5 are required to work independently as a health professional and exercise judgement on routine matters;
(j) the Shift Scientists Grades 3 – 5 is on objective analysis aligned with a HPL 2 classification in the Award – they are not expected or required to perform all of the duties of a HPL 3 as described at A.2.3(b) of Schedule A to the Award other than at paragraphs (iv) as they may be performing a number of disciplines, and do not train other staff (the HPL 3 classification performs all of those listed duties – see “and” at the end of A.2.3(b)(vi)).
12. As with the Shift Scientists, the principal purpose of a Multi-disciplinary Scientist Grade 1 and Grade 2 is to practice as an entry level health professional in a regional laboratory. A Multi-disciplinary Scientist Grade 1 and Grade 2 is in their initial years of experience and meets the definition of a Health Professional Level 1, and not higher. The [Employer] refers to and relies on its submissions above for Shift Scientists and its 10 January Submissions on this issue.”[11]
In the face of the Employer’s detailed submissions, the HSU’s objections to the Employer’s classification mapping of Shift Scientists (Grades 1 to Grade 5) and Multi-disciplinary Scientists (Grades 1 to Grade 3) do not withstand scrutiny. For the reasons set out in the Employer’s submissions, I find that the classifications and grades for the Shift Scientists and the Multi-disciplinary Scientists under the Agreement have been correctly mapped by the Employer to the HPSS Award classifications and grades. In so finding, I also find that the Employer’s classification mapping of Shift Scientists (Grades 1 to Grade 5) and Multi-disciplinary Scientists (Grades 1 to Grade 3) does not ultimately result in such relevant employees to whom the Agreement applies being other than better off overall under 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 3 March 2025. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
ANNEXURE A
[1] Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.
[2] See s.188(5) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.
[3] Agreement, Clause 6.3.
[4] See HSU Form F18; HSU Submissions dated 16 January 2025; Email from HSU (Mr Michael Lee, Lead Industrial Officer) to Chambers dated 10 February 2025, 12:07pm.
[5] The parties have agreed for these HSU objections to be resolved on the papers: see Email from HSU (Mr Michael Lee, Lead Industrial Officer) to Chambers dated 18 February 2025, 2:27pm.
[6] HSU Submissions, at [32]-[33]; Employer’s Reply Submissions, at [9]-[10].
[7] Employer’s Reply Submissions, at [2]-[9]; Email from HSU (Mr Michael Lee, Lead Industrial Officer) to Chambers dated 18 February 2025, 2:27pm.
[8] Employer’s Submissions, at [8]-[14]; Employer’s Reply Submissions, at [2]-[9].
[9] HSU Submissions, at [20]-[22]. See also HSU Form F18 (p.3 of 6), Item 7, paragraph [2].
[10] Employer’s Submissions, at [15]-[17].
[11] Employer’s Reply Submissions, at [11]-[12], and [18]. Note also HSU Submissions, at [32]-[33], and Employer’s Reply Submissions, at [18].
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