FWC quashes plan to make 'over 50s' have more medical checks

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FWC quashes plan to make 'over 50s' have more medical checks

An enterprise agreement that requires over 50s to have regular medical checks: what's wrong with that? Plenty, says the Fair Work Commission.

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The Fair Work Commission has refused to approve an enterprise agreement that required employees aged 50 and over to have medical examinations more often than younger employees.

The clause in the agreement required them to have annual exams, and more frequent ones “as circumstances require”, but for younger employees the requirement was for exams at least every three years. The FWC ordered that the clause be removed before it would consider whether to approve the agreement.

Facts of case


The agreement was to cover employees working at a quarry. Its predecessor agreement stated that employees may be required to attend medical examinations during working hours and paid for by the employer. There were no provisions referring to age or frequency.

The proposed new agreement sought to make exams compulsory, and stated that they were required at least every three years for employees aged under 50, and annually for employees 50 and over.

Although more than 90 per cent of employees voted in favour of the new agreement, the union, as one of the bargaining agents, objected to it, claiming that the new clause amounted to age discrimination. It also raised other objections to the agreement.

Decision


The FWC agreed with the union, and recommended that the employer remove the “discriminatory effect” of the examinations clause via an undertaking, within one week. If the employer did so, and also provided three other undertakings regarding other issues of concern, the FWC would then determine the application after hearing the views of the union and other bargaining representatives. The union identified six other provisions which it claimed were less favourable than the award provisions, with the FWC inviting the employer to provide further undertakings regarding three of them.

However, the FWC rejected the union’s claim that the agreement had not been genuinely agreed to.

The bottom line: Sections 194 and 195(1) of the Fair Work Act 2009 define the scope of 'discriminatory terms' that cannot be included in enterprise agreements. Terms that discriminate against an employee on various grounds, including age, are unlawful and (as in this case) will have to be removed before the agreement can be approved.

Read the judgment

Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023, [2020] FWC 1063, 26 February 2020 
 
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