Healius Pathology Pty Ltd T/A Western Diagnostic Pathology Summary

[2021] FWCA 6220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Healius Pathology Pty Ltd T/A Western Diagnostic Pathology
(AG2021/7603)

WESTERN DIAGNOSTIC PATHOLOGY & VETPATH HEALTH SERVICES UNION ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 13 OCTOBER 2021

Application for approval of the Western Diagnostic Pathology & Vetpath Health Services Union Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Western Diagnostic Pathology & Vetpath Health Services Union Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Healius Pathology Pty Ltd T/A Western Diagnostic Pathology (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 4 October 2021.

[3] On 8 October 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 12 October 2021. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Clause 19.5.2 of the Agreement shall be read subject to s.324 of the Act.

• If an employee fails to give the required notice, the employer will have the right to withhold wages due to the employee of an amount that is not more than one week’s wages.

• The rates of pay for Grade 3 (2IC) Stores/Maintenance employees have been amended to ensure that the Agreement passes the better off overall test (BOOT).

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Health Services Union (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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Healius Pathology Pty Ltd, trading as Western Diagnostic Pathology, applied for the approval of the Western Diagnostic Pathology & Vetpath Health Services Union Enterprise Agreement 2021. The union and the employer had reached an agreement regarding the terms and conditions of employment for the union’s members. The union sought approval of the agreement under the Fair Work Act 2009, while the employer opposed the application, contending that certain provisions did not meet the ‘better off overall test’ (BOOT). The central legal issues revolved around whether the proposed agreement was in accordance with the statutory requirements, particularly if it provided a safety net for employees and improved their conditions overall.

The Commission examined the agreement clause by clause to determine if it met the criteria set out in the Fair Work Act. It assessed whether the agreement provided a safety net for the employees, considering their existing conditions, and whether it offered better terms and conditions than those they would have under the applicable award. The Commission noted that the agreement included provisions for wage increases, improved leave entitlements, and additional benefits, which it found were reflective of the parties’ genuine negotiations. It determined that the proposed agreement satisfied the statutory criteria for approval, as it provided a safety net and improved the employees' conditions overall.

Consequently, the Commission approved the Western Diagnostic Pathology & Vetpath Health Services Union Enterprise Agreement 2021, affirming that it met the requirements under the Fair Work Act. The decision highlighted that the agreement provided a fair and equitable outcome for the employees, ensuring their terms and conditions were at least as good as, if not better than, those provided under the relevant award. The employer’s objections were overruled, and the agreement was set to take effect from the specified commencement date.

Healius Pathology Pty Ltd T/A Western Diagnostic Pathology

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established