Healius Pathology Pty Ltd t/a Western Diagnostic Pathology

[2024] FWCA 3951

[2024] FWCA 3951

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

(AG2024/3889)

WESTERN DIAGNOSTIC PATHOLOGY COURIERS' ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 12 NOVEMBER 2024

Application for approval of the Western Diagnostic Pathology Couriers' Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Western Diagnostic Pathology Couriers' Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Healius Pathology Pty Ltd t/a Western Diagnostic Pathology (the Applicant). The Agreement is a single enterprise agreement.

1. The Commission identified a number of concerns with the application as filed and provided the Applicant with an opportunity to respond to those concerns. One of the concerns was that there was a minor discrepancy between the name of the proposed agreement in the Notice of Employee Representational Rights (NERR) and the Agreement. The discrepancy was limited to a reference to the year 2021 in the former and 2024 in the latter. The Applicant submitted that in the circumstances the difference was a minor procedural or technical error within the meaning of s.188(5). I accept that submission. The discrepancy is minor and the NERR otherwise correctly identified the scope of the proposed agreement. I am satisfied that the employees were not likely to have been disadvantaged by the error and propose to disregard the error.

1. The Applicant also accepted that the employees were informed of the details of the voting process 6 calendar days before the day on which voting commenced. Paragraph 16 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement) provides:

   16. Employees should be informed of the time, place and method for the vote:

   (a) at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or
   (b) by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.  

1. In determining whether I am satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement I am required to take into account the Statement.[1] The Applicant submitted that notwithstanding the failure to provide the 7 full calendar days’ notice of the details of the voting process referred to in paragraph 16 of the Statement, the Commission could be satisfied that the Agreement was genuinely agreed.

1. There was a high level of voter participation in the voting process with 87% of employees to be covered by the Agreement casting a valid vote and 100% of those who did vote, voting to approve the Agreement. This level of participation indicates that the employees were aware of the voting process and were not disadvantaged by the timing of the notification. There was no evidence to suggest that employees did not have a reasonable opportunity to vote on the Agreement in a free and informed manner and I note that the voting period of 7 calendar days, provided for that opportunity. The Agreement replaces a previous agreement entered into in 2021. The parties are familiar with the bargaining process. The Health Services Union (WA Branch) (HSUWA), being an employee bargaining representative for the Agreement, did not raise any concerns in relation to the Agreement being genuinely agreed and supported the approval of the Agreement. Nor did the other employee bargaining representative raise such a concern. I conclude that the Agreement was genuinely agreed to by the employees covered by the Agreement.

1. I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

1. I note that Clause 5.2 of the Agreement provides that this Agreement will be read in and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to the Employee, the NES will apply to the extent of the inconsistency.

1. The HSUWA lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the HSUWA.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Section 188(1).

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