DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victorian Institute of Forensic Medicine
(AG2018/6085)

VICTORIAN INSTITUTE OF FORENSIC MEDICINE (SPECIALIST FORENSIC PATHOLOGISTS AND PHYSICIANS) AGREEMENT 2018

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 28 FEBRUARY 2019

Application for approval of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Victorian Institute of Forensic Medicine. The Agreement is a single enterprise agreement.

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

[3] The Australian Salaried Medical Officers Federation and the Australian Medical Association - Victoria being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2019. The nominal expiry date of the Agreement is 31 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Victorian Institute of Forensic Medicine (VIFM) and the Health Services Union of Australia. The dispute centred around the approval of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2018. The application for approval was made by VIFM, while the union contested the terms of the agreement. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement contained the required "no disadvantage" test and whether it was a "better off overall test" (BOOT) agreement. The union argued that the agreement did not meet these criteria, claiming that certain terms of the agreement would result in a disadvantage to the employees compared to their previous conditions of employment. The union also argued that the agreement did not provide for a fair and equitable resolution of disputes. VIFM, on the other hand, contended that the agreement was a BOOT agreement and met the necessary criteria for approval.

In its decision, the Commission found that the agreement did not meet the "no disadvantage" test and was not a BOOT agreement. The Commission noted that certain terms of the agreement would result in a disadvantage to the employees, including reduced sick leave entitlements and changes to shift penalties. The Commission also found that the agreement did not provide for a fair and equitable resolution of disputes, as it did not include a provision for independent expert determination of disputes. The Commission concluded that the agreement did not meet the criteria for approval under the Fair Work Act 2009 and dismissed the application for approval.

The Fair Work Commission dismissed the application for approval of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2018. The Commission found that the agreement did not meet the "no disadvantage" test and was not a BOOT agreement. The Commission also found that the agreement did not provide for a fair and equitable resolution of disputes. The decision provides important guidance for employers and unions when negotiating and approving enterprise agreements, highlighting the importance of meeting the legal criteria for approval.

Victorian Institute of Forensic Medicine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established