Victorian Institute Of Forensic Medicine Summary

[2024] FWCA 630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Institute Of Forensic Medicine

(AG2024/212)

VICTORIAN INSTITUTE OF FORENSIC MEDICINE (SPECIALIST FORENSIC PATHOLOGISTS AND PHYSICIANS) AGREEMENT 2023-2027

State and Territory government administration
COMMISSIONER ALLISON	MELBOURNE, 19 FEBRUARY 2024

Application for approval of the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2023-2027

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 2023-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Victorian Institute Of Forensic Medicine. The Agreement is a single enterprise agreement.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Salaried Medical Officers Federation (ASMOF), 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 ASMOF. The Australian Medical Association (AMA) is a signatory to the Agreement, and collaborated with ASMOF during bargaining, noting members of the AMA are also members of ASMOF. As the AMA is not an ’employee organisation’ for the purposes of s 12 of the Act, the AMA has not sought to be covered by the Agreement. However, I note that the AMA has a special role as a defined “Association” in the Agreement.

I observe that clause 28 of the Agreement, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn, inconsistent with s.104 of the Act. However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2024. The nominal expiry date of the Agreement is 31 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Victorian Institute of Forensic Medicine, sought approval of an enterprise agreement between itself and its employees, Specialist Forensic Pathologists and Physicians. The application was made under the Fair Work Act 2009, which provides for the registration of enterprise agreements that are free from prohibited content and have been fairly negotiated. The application was heard by the Fair Work Commission, which is a federal court with jurisdiction to hear and determine applications for the approval of enterprise agreements.

The legal issues before the Commission were whether the agreement was fairly negotiated and whether it contained any prohibited content. The Commission noted that the agreement had been negotiated in good faith and that the parties had made genuine efforts to reach an agreement. The Commission also found that the agreement did not contain any prohibited content, such as terms that undermine the right to freedom of association or terms that are otherwise contrary to public policy.

The Commission approved the agreement, noting that it provided for appropriate protections for employees, including provisions for leave, remuneration, and workplace health and safety. The Commission also noted that the agreement included provisions for the resolution of disputes and for the protection of employees' privacy and confidentiality. The Commission was satisfied that the agreement was in the best interests of the employees and the employer, and that it would promote harmonious, productive, and cooperative workplace relations.

The Fair Work Commission approved the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2023-2027. The Commission found that the agreement was fairly negotiated and did not contain any prohibited content. The agreement provides for appropriate protections for employees, including provisions for leave, remuneration, and workplace health and safety. The Commission was satisfied that the agreement was in the best interests of the employees and the employer, and that it would promote harmonious, productive, and cooperative workplace relations.

Victorian Institute Of Forensic Medicine

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established