Agreements: medical examination form, authority to sign, stand-down and more


Agreements: medical examination form, authority to sign, stand-down and more

Recent decisions of federal courts and tribunals relating to enterprise agreements include employer’s medical examination form — reasonable requirement; At least two employees required; Employer’s agent had authority to sign; Voting properly managed; Stand-down without pay not permitted; and more.


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Recent decisions of federal courts and tribunals relating to enterprise agreements include:

Employer’s medical examination form — reasonable requirement
The Fair Work Commission (FWC) held that the plain meaning of the clause was clear without ambiguity: employees who elect to attend a medical practitioner of their choosing must use pro-forma provided by the employer and return completed form to the employer. The employer had the prerogative to alter the pro-forma medical examination form. The employer’s concern was whether employees were fit for work and complied with safety standards. The purpose of the clause was to establish the process for employees to be medically assessed so that the employer could be satisfied of their fitness to operate mobile equipment.
The Australian Workers’ Union v Alcoa World Alumina Australia Limited [2013] FWC 674 (12 February 2013) 

At least two employees required for enterprise agreement
The Fair Work Act 2009 was amended in late 2012 with a new requirement that at least two employees are required for the making of an enterprise agreement. Because there was only one employee in this matter, it was not a no valid application.
Dean McFarlane Welding P/L and AMWU Geelong Area Agreement 2011–2014 [2013] FWC 1669 (18 March 2013)

Employer’s agent had authority to sign agreement
A Full Bench of the FWC held that the Deputy President possessed the power to provide relief from the rules and exercise of such power and this was reasonable in the circumstances. The Deputy President had sufficient basis for approving agreements having regard to statutory requirements and the reasons for approval were provided and were adequate in the circumstances.
Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital; Kaizen Hospitals (Mountain District) Pty Ltd T/A Melbourne Eastern Private Hospital [2013] FBFWC 1846 (26 March 2013)

Voting on agreement not properly managed
The employees on the Worsley project clearly were entitled to vote and the expectation that Worsley employees would soon finish employment did not justify declining to give them opportunity to vote. Had the coverage clause been drafted in a manner consistent with the Act, Worsley employees would have been entitled to participate in negotiations and vote. This consideration went to compliance with the pre-approval steps required and whether the agreement was validly made. Consequently, it was wrong to accept that it was appropriate to exclude these employees.
Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors against decision of McCarthy DP of 6 November 2012 — Re: MI&E Holdings P/L Western Division Enterprise Agreement 2012 [2013] FWCFB 2142 (18 April 2013) 

Agreement covers non-transferring employees performing similar work
This was an application by the new employer who sought an order that the transferable instrument would also cover non-transferring employees. The non-transferring employees were currently covered by a modern award and the transferring employees were covered by a transferable instrument. The applicant sought to cover the non-transferring employees to avoid some employees receiving different entitlements for same work. The applicant submitted that it would be administratively challenging to apply two different industrial instruments. The application was granted.
Re Sub Employment P/L [2013] FWC 2194 (12 April 2013)

Stand-down without pay not permitted
The employer determined that the applicant would remain stood down without pay. The FWC noted that the position of respondent-employer did not appear to accord with the plain language of the agreement. In addition, there was no evidence before the Commissioner to suggest that a process that led to the termination of applicant because of his incapacity to perform the inherent requirements of the position could be well founded.
Fiumara v Venture Campbellfield P/L [2013] FWC 2123 (8 April 2013)

Right-of-entry terms to be settled
The issue being tested was whether an employee was covered under Maritime Union of Australia (MUA) eligibility rules and not whether the task was the same as if it were done elsewhere. The predominant task of unloading aggregate from a barge docked at the wharf was a stevedoring operation, and excavator operators were following the occupation of waterside worker and eligible to be members of MUA.
With no direct evidence relating to other employees it was not possible to conclude the exact nature of the work. In contrast, the Commission was able to ascertain from the evidence a clear understanding of excavator operators’ work. The MUA was entitled to represent the industrial interests of excavator operators working on the Condock at premises occupied by Bechtel on Curtis Island. It was left to the parties to determine a mutually suitable venue for holding discussions. It followed that the MUA permit holder was entitled to enter the premises for purpose of holding discussions with one or more excavator operators.
The Maritime Union of Australia v Bechtel Construction (Australia) P/L [2013] FWC 2039 (9 April 2013)

Comparison with Retail Award meant agreement failed BOOT
The comparison of job classifications in the agreement with definitions of Retail Employee in the Retail Award indicated the Agreement classifications fell within Retail Award definitions. There was no issue that the Retail Award was in operation at the ‘test time’. The employer did not dispute that if the Retail Award was relevant for assessing whether the Agreement passed the BOOT then the agreement would not pass and the Commissioner was correct to dismiss the application. The Commissioner’s decision to refuse to approve the agreement was confirmed.
Appeal by G.J.E. P/L against decision of Gooley C of 13 November 2012 [2012] FWA 9549; Re: All Equipment Hire Enterprise Agreement 2012 [2013] FWCFB 1705 (3 April 2013)
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