Lifehouse Australia as Trustee for Lifehouse Australia Trust

[2024] FWCA 3962

[2024] FWCA 3962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Lifehouse Australia as Trustee for Lifehouse Australia Trust

(AG2024/3924)

LIFEHOUSE MEDICAL PHYSICISTS AGREEMENT 2024

Health and welfare services industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 13 NOVEMBER 2024

Application for approval of the Lifehouse Medical Physicists Agreement 2024

Introduction

1. Lifehouse Australia as Trustee for Lifehouse Australia Trust (the Employer) has made an application for approval of an enterprise agreement known as the Lifehouse Medical Physicists Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Health Professionals and Support Services Award 2020. The Health Services Union (HSU) was a bargaining representative for the Agreement.

Carer’s Leave

1. Clause 35.7 of the Agreement provides that an employee’s entitlement to carer’s leave is subject to the employee ‘being responsible’ for the care and support of the person concerned. This appears to be more onerous than what is required by s.97 of the Act. I note that in accordance with the National Employment Standards (NES) precedence term in Clause 4A of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Direction to Take Annual Leave

1. Clause 33.6 of the Agreement states that the Employer may direct the employee to take annual leave when they have accrued in excess of 150% of their annual accrual (4 weeks). This appears to be an excessive leave provision which is permissible under s. 93 of the Act and provided in clause 27.7 of the Award. However, the Award prescribes this provision when 8 or more weeks of annual leave have been accrued. Under the Agreement, this provision is applicable when the employee has accrued 6 or more weeks of annual leave. The Agreement term appears to be more restrictive than the NES

1. The Employer submitted that clause 33.6, while different from the Award in providing for a lower leave accrual threshold, is not more restrictive than the NES. The Employer contended that the provision is reasonable, as it allows employees with over 6 weeks of leave to be directed to take leave, provided they receive 8 weeks' notice, keep a 6-week minimum balance, and have the opportunity to submit a leave reduction plan. Additionally, employees saving leave for an extended vacation within 12 months can bank up to 10 weeks.

Definition of a Shiftworker

1. The Agreement appears to provide a definition of a shiftworker at clause 33.3 of the Agreement and refers to employees that work on 35 or more ordinary hour shifts occurring on Sundays and/or Public Holidays during a qualifying period of employment for annual leave purposes. The Award at clause 27.2 merely defines that employees be regularly rostered to work Sundays and Public Holidays and does not define the amount of those days per year. The Employer submitted that the words ‘regularly rostered to work Sundays and public holidays’ have been examined in a number of cases of the Fair Work Commission and been held to mean 34 Sundays and 6 public holidays. The Employer further submitted that the reference to 35 or more ordinary shifts on a Sunday and/or public holiday is more generous than the Award definition (being 34 Sundays and 6 public holidays, together totalling 40).

Section 186, 187, 188 and 190

1. I have considered the Employer’s submissions, and that the HSU supports approval of the Agreement. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The 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.

1. In accordance with s.201(2), I note that the Agreement covers the HSU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 November 2024. The nominal expiry date of the Agreement is 31 August 2026.

DEPUTY PRESIDENT

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