DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology
(AG2019/4473)

SPECIALIST DIAGNOSTIC SERVICES PTY LTD (SDS) T/A LAVERTY PATHOLOGY (NSW AND ACT) ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER JOHNS	SYDNEY, 14 JANUARY 2020

Application for approval of the Special Diagnostic Services Pty Ltd (SDS) t/a Laverty Pathology (NSW and ACT) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Special Diagnostic Services Pty Ltd (SDS) t/a Laverty Pathology (NSW and ACT) Enterprise Agreement 2019. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, 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.

[4] The Health Services Union of Australia 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Specialist Diagnostic Services Pty Ltd, trading as Laverty Pathology (SDS), applied to the Fair Work Commission for approval of the Special Diagnostic Services Pty Ltd (SDS) t/a Laverty Pathology (NSW and ACT) Enterprise Agreement 2019. The application was opposed by a union, the Health Services Union (HSU), and an individual employee. The dispute centred on the proper interpretation and application of the Fair Work Act 2009, particularly in relation to the procedural fairness afforded to parties during the negotiation and approval process of the enterprise agreement.

The court was tasked with determining whether the negotiation process and the terms of the enterprise agreement complied with the statutory requirements. This involved examining the fairness of the negotiation process, the content of the agreement, and whether the approval process adhered to the relevant provisions of the Fair Work Act. Key issues included whether there was adequate consultation with relevant employee representatives, the extent of employee participation in the negotiation process, and whether the agreement met the "better off overall test" under the Act.

In its decision, the Fair Work Commission held that the negotiation process was procedurally fair, and the terms of the agreement met the better off overall test. The Commission found that SDS had adequately consulted with the HSU and provided opportunities for employee participation. The Commission emphasised the importance of the "better off overall test," which requires that employees be no worse off and at least some employees better off financially under the new agreement compared to the previous one. The court also considered the overall fairness of the agreement in light of the evidence presented and concluded that the agreement should be approved.

The Fair Work Commission approved the Special Diagnostic Services Pty Ltd (SDS) t/a Laverty Pathology (NSW and ACT) Enterprise Agreement 2019, subject to specific modifications. The modifications were aimed at ensuring compliance with the statutory requirements and addressing minor procedural concerns raised during the hearing. The decision underscores the importance of procedural fairness and employee participation in the negotiation of enterprise agreements.

Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established