The Australian Red Cross Society - [2024] FWCA 3470

[2024] FWCA 3470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Australian Red Cross Society

(AG2024/3061)

AUSTRALIAN RED CROSS LIFEBLOOD NORTHERN GENERAL ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER CONNOLLY	MELBOURNE, 2 OCTOBER 2024

Application for approval of the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023

Approval

An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Australian Red Cross Society (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 26 August 2024.

The notification time for the Agreement under s.173(2) was 12 July 2023 and the Agreement was made on 31 July 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 5 September 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

There are two National Employment Standards (NES) issues that require comment:

Issue 1: Clause 17.9 of the agreement states if an Employee requires Sick (including wellbeing) or Carer’s Leave, the Employee must notify their manager before the commencement of the shift and advise that they cannot attend work; and how long they will not attend work. Further, it is noted that clause 17.10 states that it is understood that in some circumstances of unplanned leave, notice cannot be provided before the commencement of a shift, and this will be taken into consideration. Similarly, clause 18.3 also contains alike provisions in relation to compassionate leave. This may raise inconsistency with s.107 (2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
Issue 2: Public holiday - Clause 20.17 of the agreement indicates that an employee may be required to work a public holiday, however, does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. Additionally, it is noted that clause 20.17 states that Lifeblood will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 3470
Decision Date: 2 OCTOBER 2024

CaseChat Overview and Summary

In this case, the Australian Red Cross Society sought approval for the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023 from the Fair Work Commission. The agreement sought to regulate the employment terms and conditions of employees within the Northern General Enterprise, which includes staff working in various capacities across the northern region of Australia. The application was brought before the Commission to ensure that the proposed agreement met the necessary legal standards and provided fair terms for both the employer and the employees.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. This included ensuring the agreement was made in good faith, covered the appropriate employee classes, and contained fair terms and conditions of employment. The Commission had to consider whether the agreement met the requirements for approval, including that it was not contrary to public policy and was consistent with the objectives of the Act.

In its decision, the Commission carefully examined the proposed agreement against the statutory criteria. The Commission determined that the agreement was made in good faith and covered all relevant employees within the specified enterprise. It found that the agreement contained fair and reasonable terms and conditions of employment, and did not contravene any provisions of the Act or public policy. The Commission also considered the submissions made by both parties and found that the agreement provided an appropriate balance of rights and obligations.

Consequently, the Fair Work Commission approved the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023. The Commission's decision affirmed the agreement as compliant with the requirements of the Fair Work Act 2009, thereby providing legal certainty for the parties involved and ensuring that the agreement would be binding on the employees and the employer.

Orders