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These are EMA’s pick of the most interesting and relevant cases reported in the last month. Please note that these are summaries only, and should not be relied upon in place of the full judgment. If you would like clarification on any of the judgments, or wish to know how a particular case may apply to a matter you currently have, please contact one of our consultants.

Health Services Union v Clinpath Laboratories Pty Ltd [2018] FWCFB 5694 (11 September 2018)

Industry: Health

Type: Approval of enterprise agreement

Summary: Clinpath’s explanatory document provided, amongst other items, that ‘incremental (wage) increases occur at 1950 hours for all staff’. On the evening before voting was to commence, Clinpath clarified that this was a ‘change for casual and part-time staff, who currently move through the increments after having worked 1560 hours or 2 years’.

Outcome: The information initially provided was insufficient, and the subsequent clarification therefore should have been expressed earlier than the afternoon before the start of the vote. Held that Clinpath therefore did not take ‘all reasonable steps’ to ensure the terms of the Agreement and their effect were explained to employees.

Key notes: Employers must take all reasonable steps to ensure the effects of an enterprise agreement are explained to employees. These effects should be explained during the access period, not during the voting period.
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The Police Federation of Australia v Victoria Police [2018] FWC 5695 (14 September 2018)

Industry: Police

Type: Request for Flexible Working Arrangement under an enterprise agreement term.

Summary: The employee was 58 years of age and had been employed by Victoria Police for 31 years. He made a request to vary his working days and hours from five days per week to four, going from eight to ten-hour days. The request was to transition into his retirement and spend more time with his family. Victoria Police refused his request for financial reasons and because five days per week with overtime was an inherent part of the employee’s position.

Outcome: The Commissioner found that neither reason for refusal of the employee’s request were reasonable business grounds within the meaning of the applicable enterprise agreement or the Fair Work Act 2009 (Cth). Because the enterprise agreement specifically allowed the FWC to arbitrate a dispute about reasonable business grounds (in contrast with the FW Act which does not permit orders relating to reasonable business grounds unless the parties agree).
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