s.185 - Application for approval of a single-enterprise agreement

Australian Red Cross Society Trading AS Australian Red Cross Lifeblood

Application for approval of the Australian Red Cross Lifeblood South West General Enterprise Agreement 2023

• [1] Australian Red Cross Society Trading as Australian Red Cross Lifeblood (Lifeblood) has made an application for approval of an enterprise agreement known as the Australian Red Cross Lifeblood South West General Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

• [2] The Employees covered by the Agreement perform work within, or primarily in support of, manufacturing, processing, testing, distribution, logistics, research, diagnostic, pathology, scientific, clinical governance, transplantation and immunogenetics services across Western Australia, Victoria, South Australia and Tasmania.

• [3] The Agreement will apply to employees who are covered by the Health Professionals and Support Services Award 2020 (the Award).

• [4] If approved, the Agreement will replace the following agreements which currently apply to employees:

• Australian Red Cross Lifeblood Scientists Enterprise Agreement Victoria 2020
• Australian Red Cross Blood Service General Enterprise Agreement Victoria 2017
• Australian Red Cross Blood Service General Enterprise Agreement Tasmania
• Australian Red Cross Lifeblood Enterprise Agreement South Australia 2020
• Australian Red Cross Lifeblood Western Australian Manufacturing and General Enterprise Agreement 2021

• [5] The following employee organisations were bargaining representatives in relation to the Agreement:

1. Health Services Union-Western Australia Branch (HSU WA)
2. Health Services Union-Victoria No. 1 Branch (HSU 1)
3. Health Services Union-Victoria No. 3 Branch trading as the Victorian Allied Health
4. Professionals Association (VAHPA)
5. Health Services Union-Victoria No. 4 Branch trading as the Medical Scientists Association of Victoria (MSAV)
6. CPSU, the Community and Public Sector Union-SPSF Group, South Australian Branch (CPSU)
7. The Association of Professional Engineers, Scientists and Managers, Australia, Professional Engineers Division, South Australia and Northern Territory Sub-Division (APESMA)
8. Australian Municipal, Administrative, Clerical and Services Union-South Australian and Northern Territory Branch (ASU SA/NT)
9. Australian Municipal, Administrative, Clerical and Services Union-Western Australian Branch (ASU WA)
10. United Workers' Union (UWU)

• [6] There were also two individual employee bargaining representatives.

• [7] HSU 1 supports approval of the Agreement but did not express a view about whether the Agreement passes the better off over all test (BOOT).

• [8] HSU WA, APESMA, the UWU, ASU WA and ASU SA/NT did not advise the Commission whether they support or oppose approval of the Agreement and did not express a view about whether the Agreement passes the BOOT.

• [9] VAHPA, MSAV and the CPSU do not support approval of the Agreement and are all of the view that the Agreement does not pass the BOOT. VAHPA, MSAV and the CPSU also submitted that Lifeblood has not met its obligations under s.180(5) in relation to the Agreement and as such the Commission cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement. This decision deals with these issues.

• [10] Where an application for approval of an enterprise agreement is made under s.185 of the Act, s.186(1) requires that the Commission approve the agreement if the requirements set in ss.186 and 187 are met. Section 186(2)(a) requires the Commission to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 186(2)(d) requires the Commission to be satisfied that the agreement passes the BOOT.

• [11] Section 188 of the Act sets out the requirements for determining whether an agreement has been genuinely agreed to by employees. Section 188(1) requires the Commission to take into account the Statement of Principles made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Section 188(4A) provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the Commission is satisfied that the employer complied with s.180(5) in relation to the agreement.

• [12] Section 180(5) of the Act provides:

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

• [13] Paragraphs 8-14 of the Statement of Principles are relevant to the Commission's consideration under s.180(5). Paragraphs 8-14 provide:

1. Section 180(5)(a) of the Fair Work Act requires the employer to take all reasonable steps to explain the terms of a proposed enterprise agreement, and the effect of those terms, to employees employed at the time who will be covered by the agreement. This should include at a minimum explaining to employees how the agreement will alter their existing minimum entitlements and other terms and conditions of employment. In explaining this, subject to paragraph 9:

(a) where a proposed enterprise agreement will replace an existing enterprise agreement - it will generally be sufficient to explain:

(i) the differences in entitlements and other terms and conditions between the 2024 Agreement and the existing agreement, and

(ii) the differences in entitlements and other terms and conditions between the 2024 Agreement and any applicable modern award provisions that have been varied since the existing agreement was made (including award variations that have not yet come into effect), or

(b) where a proposed enterprise agreement will not replace an existing enterprise agreement - it will generally be necessary to explain the differences in entitlements and other terms and conditions between the 2024 Agreement and any applicable modern award.

1. In explaining to employees how the proposed enterprise agreement will alter their existing minimum entitlements and other terms and conditions of employment, there is usually no need to explain trivial differences between the proposed agreement and an existing enterprise agreement or modern award that have no effect on employees' entitlements or obligations.

1. Section 180(5) will generally not be satisfied if the employer makes an incorrect representation or misleads employees (by words, action or otherwise) about a significant term of the proposed enterprise agreement or its effect.

1. In determining whether section 180(5) has been complied with, the FWC may have regard to any explanation of the proposed enterprise agreement given to employees by one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

1. Subject to paragraph 13, an employee may be provided with the explanation required by section 180(5):

(a) by giving the employee, or ensuring the employee has access to, a hard copy of the explanation

(b) by electronic means (either by sending the explanation to the employee, or by sending the employee a link to the explanation or otherwise giving the employee access to the explanation online)

(c) orally, but the FWC may take into account whether there is a written record or summary kept of the oral explanation, or

1. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(a) or 12(b), the employee should have a reasonable opportunity to read the explanation. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(c), the employee should have a reasonable opportunity to attend the oral explanation.

1. Section 180(5)(b) of the Fair Work Act requires the explanation of the proposed enterprise agreement to be provided in an appropriate manner taking into account the particular circumstances and needs of the employees. In determining whether the explanation of the proposed enterprise agreement was given in an appropriate manner, in addition to taking into account the circumstances and needs of the kinds of employees in section 180(6), the FWC may take into account:

(b) the environment(s) in which work is performed (for example, office, workshop, field, operating equipment or machinery, driving between locations)

(c) facilities available at the location(s) or in the environment(s) in which work is performed (for example, internet access, computer facilities, ability for employees to access mobile telephones while working, printing/copying facilities, private space for employees to consider material or information)

(d) hours of work or rosters which may limit access to relevant facilities or limit the time employees have to consider materials or information

(e) the circumstances and needs of employees who are absent from a workplace due to their roster cycle or for other reasons, and

(f) the nature of the work performed by the employees.

• [14] The BOOT which is the subject of the approval requirement in s.186(2)(d) is explained in s.193(1) as follows:

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that:

(a) each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and

(b) if the agreement is a single‑enterprise agreement that covers one or more employees (each of whom is an old agreement employee) to whom a supported bargaining agreement or a single interest employer agreement applies - each old agreement employee would be better off overall if the single‑enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

Note 1: Reasonably foreseeable employee is defined in subsection (5).

Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

• [15] Section 193A sets out the requirements for applying the BOOT. It provides:

(1) This section applies for the purposes of determining whether an enterprise agreement passes the better off overall test under section 193.

(2) To avoid doubt, the FWC must undertake a global assessment of whether each employee concerned would be better off having regard to:

(a) the terms of the agreement which would be more beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee; and

(b) the terms of the agreement which would be less beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

(3) The FWC must give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by any of the following:

(a) the employer or employers that are covered by the agreement;

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - those employees;

(c) in any case - a bargaining representative for the agreement.

(4) The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:

(a) the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;

(b) the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation);

(d) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation).

(5) Subsection (4) does not apply if the agreement is a greenfields agreement.

(6) The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.

(6A) The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

(a) the employer or employers that are covered by the agreement;

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - those employees;

(c) in any case - a bargaining representative for the agreement.

(7) If a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

• [16] The CPSU expressed concern that a part-time employee notifying of their availability is deemed to be agreeing to work additional hours under the notes to clause 15.2 of the Agreement. In practice, an employee is likely to be available to work for more than their agreed part-time hours, however this does not mean they have agreed to work those hours without being paid at overtime rates.

• [17] The CPSU submitted that the Award is clear, requiring written agreement by the employee to work additional hours. This agreement is not a case, as in Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty. Limited[1] of a standing written agreement to work additional hours. It is not the case that a published roster can form a written agreement to work additional hours, particularly where part-time workers do not have a set work pattern, but work varying shifts.

• [18] The CPSU submitted that it is not clear from the Agreement, and has not been explained by Lifeblood, how a part-time employee would object to working additional hours once a roster is published, as it is not clear which hours would be considered additional. For example, if a part-time worker is contracted to work 20 hours per week, but is unilaterally rostered to work 26 hours by the employer, it would not be clear to the worker which six hours of additional work are to be objected to.

• [19] VAHPA and MSAV also expressed concern about part-time employment provisions under the Agreement. VAHPA and MSAV submitted that unlike sub-clause 10.2 of the Award, there is not a requirement for an employee to have an agreed pattern of work that includes days of the week that the employee will work and the starting and finishing times each day. This means that on the roster a part-time employee will not be able to identify which hours are their 'ordinary hours' and which are their 'additional ordinary hours' which creates a practical difficulty to objecting to additional ordinary hours.

• [20] To demonstrate this concern, VAHPA provided an example of a part-time Technician in Production who has an agreed pattern of work (as required under the Award) of 5:45am to 2:45pm Monday to Wednesday (with an hour unpaid meal break). According to Lifeblood's classification translation, a Technician in Production is Level 2b in the Proposed Agreement, which translates to Support Services Level 2 in the Award.

• [21] If, in a four week cycle, Lifeblood changed the employee's pattern of work in two of the weeks to 9:15am to 6:15pm Monday to Wednesday (with an hour unpaid meal break) without their written agreement, the part-time employee would still be entitled to payment for their agreed pattern of work hours of 5:45am to 2:45pm, with the additional three and a half hours paid as overtime. Under the Award, the employee would receive payments totalling $3,786.26 over a four week period.

• [22] VAHPA submitted that by contrast, under the Agreement, as there is no requirement to have an agreed pattern of work, a part-time employee working two weeks of 5:45am to 2:45pm Monday to Wednesday and two weeks of 9:15am to 6:15pm Monday to Wednesday (with an hour unpaid meal break) would be entitled to payments totalling $3,456.00 over a four week period if they were paid the minimum in the Level 2b salary band, resulting in the employee being $330.26 worse off under the Agreement compared to the Award.

• [23] VAHPA submitted that the classifications in the Agreement are significantly different to those in the Award making direct translations of classifications in the Agreement to those in the Award difficult. As such, there are potential issues with the mapping of classifications in the Agreement to those in the Award. VAHPA provided the examples of:
  • Laboratory Assistants who are classified as Level 2a in the Agreement. Lifeblood have translated these roles to Support Services Level 2 in the Award, although the Award lists Laboratory Assistant as an indicative role of Support Services Level 3.
  • Technician in Production who are classified as Level 2b in the Agreement. Lifeblood have translated these roles to Support Services Level 2 in the Award, although the Award lists Pathology Technician (the most similar indicative role) as an indicative role of Support Services Level 3.
  • Some of the General Classifications in the Agreement that Lifeblood translated to Support Services classifications in the Award should have been translated to Health Professional classifications in the Award, for example technician and production roles which would be regarded as Medical Laboratory Technicians under the Award and therefore health professional roles.

• [24] VAHPA submitted that under sub-clause 12.4 of the Agreement, a shift that commences between 4am and 6am, or a shift that finishes after 6pm but before 12 midnight attracts a shift allowance of $30. Under the Award, a shift that commences between 6pm and 6am, or finishes between 6pm and 8am attracts a 15% loading under sub-clause 26.3 of the Award. Thus, for example, in the case of a shift commencing at 5:45am, or ending at 6:15pm:

• If the employee translated to Support Services Level 2 in the Award, under the Award they would receive a shift loading of $31.03 compared to a shift allowance of $30 under the Agreement;

• If the employee translated to Support Services Level 3 in the Award, under the Award they would receive a shift loading of $32.22 compared to a shift allowance of $30 under the Agreement;

• If the employee translated to Support Services Level 4 in the Award, under the Award they would receive a shift loading of $32.60 compared to a shift allowance of $30 under the Agreement.

• [25] VAHPA submitted that while the differences may not be large, they could be a BOOT issue in relation to part-time employees in the circumstances above.

• [26] Clause 8.3 of the Agreement provides:

The ordinary hours of any Employee will not be more than ten (10) ordinary hours of work (exclusive of meal breaks) in any twenty-four (24) hour period, unless otherwise agreed (up to a maximum of twelve (12) hours per day).

• [27] In contrast, Clause 13.1(b) of the Award provides:

Not more than 10 ordinary hours of work (exclusive of meal breaks) are to be worked in any one day.

• [28] In correspondence to the Commission, Lifeblood submitted that it has no intention of introducing 12 hour shifts as a rostering practice generally. Rather, providing for the ability to agree to a 12 hour day is intended to facilitate flexibility in how shifts are worked for employees.

• [29] VAHPA submitted that if Lifeblood has no intention to introduce 12 hour shifts, and this reference to 12 hour shifts in the Agreement is to facilitate flexibility for employees, then the provisions need to be clear that working 12 hour shifts can only be at the initiation of the employee, not Lifeblood, and this needs to be recorded as a written agreement.

• [30] VAHPA submitted that the following provisions in the Agreement are inconsistent with the National Employment Standards (NES) and therefore reduce or restrict the entitlements of employees:
  1. subclause 17.2 of the Agreement states in relation to personal leave that 'It is understood that in some circumstances of unplanned leave, notice cannot be provided before the commencement of a shift, and this will be taken into consideration.' Under s.107(2)(a) of the Act, an employee must give notice to the employer as soon as practicable, which may be a time after the personal leave has started.
  2. subclause 17.15 of the Agreement states that where an employee wants to take personal leave while on annual leave, they can 'request' to have this period recredited to their annual leave. Under s.89(2) of the Act, as long as an employee provides the necessary notice and evidence, Lifeblood is required to recredit the personal leave;
  3. subclause 18.3 of the Agreement indicates that where an employee is not able to give notice of taking compassionate leave prior to a shift, this 'will be taken into consideration'. Under s.107(2)(a) of the Act, an employee must give notice to the employer as soon as practicable, which may be a time after the compassionate leave has started;
  4. subclause 18.7 of the Agreement states that a request for compassionate leave will not be unreasonably refused. However, under s.105 of the Act, as long as appropriate notice and evidence is provided, Lifeblood must give employees compassionate leave and there is no discretion for Lifeblood to refuse;
  5. subclauses 20.6 and 20.7 of the Agreement state that an employee who would 'regularly be rostered' to work on the day of a public holiday is entitled to payment for their ordinary hours on the day. Under s.116 of the Act, an employee is entitled to be paid for any ordinary hours they would have worked on the day, even if they are not regularly rostered on that day of the week;
  6. subclause 21.3 of the Agreement states that an employee has to give 10 weeks' notice of taking parental leave, except in exceptional circumstances. Under s.74 of the Act, an employee is required to give 10 weeks' notice, except where that is not practicable, in which case they must give notice as soon as practicable;
  7. subclause 22.5 of the Agreement states that an employee is expected to provide reasonable notice of a request to take annual leave. This is not a requirement under the Act. Under the Act, an employee can request annual leave at any time and the employer cannot unreasonably refuse the request under s.88(2);
  8. subclause 22.7 states that requests for Annual Leave are at the discretion of Lifeblood and in line with operational requirements. This is not the case as Lifeblood cannot unreasonably refuse a request under s.88(2) of the Act, as their own wording in sub-clause 22.8 states; and
  9. in clause 26 of the Agreement in relation to jury service, an employee is only entitled be paid by Lifeblood the difference between what they get as payment from the Victorian Government for jury service and what they would have received from Lifeblood as earnings for their ordinary hours had they not been performing jury service - that is overtime is excluded. However, under section 112 of the Act, state and territory laws in relation to community service, which includes jury duty, are not excluded by the operation of the Act, meaning the Juries Act 2000 (Vic) applies. Under section 52 of the Juries Act 2000 (Vic) an employee undertaking jury service is entitled to be paid by Lifeblood the difference between what they get as payment from the Victorian Government and what they could reasonably expect to have received from Lifeblood as earnings for that period had they not been performing jury service - that is payment is not just limited to ordinary hours.

• [31] Lifeblood submitted that the shift times across production are:

• [32] On commencement of employment with Lifeblood, employees are advised that they may be required to work a rotational roster, which is agreed with individual employees after taking into account their availability.

• [33] The rotating roster pattern does not vary week to week or have any uncertainty. For example, in a four-week roster employees typically work in a pattern of one week of morning shifts, one week of afternoon shifts, one week of morning shifts and one week of afternoon shifts. These shifts have the same start and end times as agreed with the employee, every roster.

• [34] Despite all employees being advised of the rotating roster, the majority of employees work a set roster (that is, uniform hours and days of work e.g. all mornings, all afternoons or all nights). This roster is determined after employees supply their availability to Lifeblood.

• [35] While Lifeblood has default shift times, there is an ability for individual employees and Lifeblood to agree to variations to the shift start times and lengths. In all instances, irrespective of the roster type, the Agreement provides that the roster is made available to employees at least four weeks in advance of the commencement of the roster. Given this, employees are certain of their hours, including additional hours. In limited circumstances, changes may be required to employees' rosters. Typically, Lifeblood will be aware of a likely change during the development of the roster for the next four week cycle. Prior to effecting a change by incorporating it into the roster, this will be discussed with the individual employee and agreed.

• [36] For these reasons, Lifeblood submits that the manner of arranging work is valid, and does not present a BOOT issue however, Lifeblood has offered to provide an undertaking that it will agree to a regular roster pattern to be worked by part-time employees, if the Commission considered such an undertaking to be necessary.

• [37] In relation to the concerns raised by the CPSU and VAHPA about employees being deemed to have agreed to additional hours by the publication of a roster, Lifebood submitted, amongst other things:

• rosters which include changes to an employee's agreed ordinary hours are developed and distributed following agreement with the employee;
• rosters are provided four weeks in advance and employees are able to raise an objection to the shifts they have been allocated; and
• the provision of written acceptance for a change of agreed ordinary hours is logistically difficult for employees who work in a laboratory, which is secure and sterile, and do not have ready access to computers or mobile devices for the purposes of emails.

• [38] Lifeblood submitted that it has carried out its own assessment of its positions, as against the Award, to map the classifications (and therefore wages) to the Award and that employee classifications have been appropriately mapped to the Award.

• [39] Lifeblood noted that VAHPA has pointed to three potential deficiencies of the Agreement, for Victorian and Tasmanian employees, as compared to the Award. These examples have been provided by VAHPA in isolation, and do not account for the other benefits and entitlements afforded by the Agreement.

• [40] Lifeblood submitted that it pays employees employed in Tasmania and Victoria a flat $30 allowance for certain shifts. This is compared to South Australian and West Australian employees who receive a shift penalty as a percentage of their hourly rate. This arrangement was put forward as this is how employees in these states were traditionally remunerated for shift work. Under clause 12.4(iv) of the Agreement, Victorian and Tasmanian employees receive a $30 shift allowance in addition to any penalties provided by clauses 11 and 20 of the Agreement. Applying this to a practical example, if a Victorian employee worked a Saturday shift finishing at 6.15pm, the employee will receive the $30 allowance in clause 12.4 of the Agreement as well as the Saturday penalty rate of 50% of their base rate.

• [41] Lifeblood submitted that the inclusion of a 12 hour shift by agreement only, is to facilitate better flexibility for employees. Currently, there are no employees utilising this arrangement and Lifeblood has no intention of introducing a 12 hour shift as a matter of practice generally. As such, Lifeblood's position is that this is not contrary to the Award or representative of a BOOT issue. However, Lifeblood has offered a draft undertaking in relation to this matter.

• [42] The CPSU submitted that Lifeblood did not explain changes to part-time overtime provisions to employees covered by the Agreement, including to workers in South Australia who currently enjoy conditions where additional hours not previously agreed in writing are paid at overtime rates. The CPSU submitted that as there is a lack of information about how to identify which hours are deemed to be additional and how to refuse additional hours, and the inherent unfairness in implying consent and voluntary agreement through the employer's unilateral publication of a roster, it appears that this clause is intended to avoid the payment of overtime to part-time workers who currently enjoy this particular working condition.

• [43] VAHPA and MSAV submitted that in the answer to question 23 in the Form F17B Lifeblood refers to a workbook that compared all clauses of the predecessor enterprise agreements with the Agreement, which was posted on the Intranet page for employees to review. VAHPA and MSAV submitted that:

1. this workbook is a table that shows the different entitlements in the Agreement compared to those in the predecessor enterprise agreements, but it does not explain these changes in entitlements; 2. this workbook was not distributed to employees with the relevant voting materials, the Proposed Agreement and the FAQs; and 3. the focus of Lifeblood's communications were the improvements in entitlements both prior to and during the access period and the vote. Reductions in entitlements were effectively only discussed by Lifeblood if employees raised them. 4. The issues in paragraph a. to c., above mean that, despite the workbook that compared all clauses of the predecessor enterprise agreements with the Agreement being posted on the intranet page for employees, Lifeblood did not explain these changes. 5. Further, the classifications in the Agreement are extremely different to those in the predecessor agreements. While Lifeblood may have provided to employees the specific change to their individual current classification, this did not explain changes to the classifications and structure, particularly the changes that could impact the employee's ability to progress to higher grades. 6. As a result, the requirements of:

(i) sub-section 180(5) of the Act have not been met; and > > (ii) Paragraph 8 of the Statement of Principles on Genuine Agreement have not been met, meaning employees have not genuinely agreed to the Agreement.

• [44] In relation to the focus of Lifeblood's communications to employees about the Agreement being positive, VAHPA relies upon paragraph 10 of the Statement of Principles which provides that s.180(5) will generally not be satisfied if the employer makes an incorrect representation or misleads employees (by words, action or otherwise) about a significant term of the proposed enterprise agreement or its effect.

• [45] In relation to the explanation about changes to annual leave, VAHPA submitted that the state based comparison flyers were not an explanation of the changes, but stated what the entitlements were and are. Further, the table indicated that the impact of the changes were variable, without explaining this, and does not explain how the changes will impact employees.

• [46] In relation to Family and Domestic Violence Leave, VAHPA submitted that the current agreement in relation to family and domestic violence in sub-clause 24(b)(i) has provisions relating to flexible work arrangements, access to the Employee Assistance Program and treating matters confidentially. The Agreement has no such provisions in relation to family and domestic violence in clause 19.

• [47] In relation to personal leave, VAHPA submitted that under subclauses 17.8 to 17.10 of the Agreement, an employee can be required by Lifeblood to provide evidence to take personal leave on every occasion. Under sub-clause 18.9 of the current agreement, an employee can take five days of personal leave per annum without providing evidence to Lifeblood.

• [48] In relation to time off in lieu of overtime (TOIL), VAHPA submitted that under sub-clause 16.8 of the current agreement, an employee can take a combination of TOIL and payment for overtime, whereas under subclauses 15.7 to 15.13 of the Agreement there is no ability to take a combination of TOIL and payment for overtime.

• [49] In relation to the Change of Shift Allowance which applies only to current employees, VAHPA submitted that Lifeblood's own workbook that lists the entitlements in the Agreement compared to those in the predecessor enterprise agreements has this entitlement colour-coded as the same entitlement as the current agreement when this is clearly not the case, as the provision in the current agreement is not limited to employees employed by Lifeblood prior to the Agreement commencing operation.

• [50] In relation to classifications, VAHPA submitted that Lifeblood did not explain the classifications and structure, particularly the changes that could impact an employee's ability to progress to higher grades.

• [51] In relation to shiftwork, VAHPA submitted that Lifeblood did not explain the changes in entitlement with respect to employees rostered to commence a shift between 4am and 5am.

• [52] Lifeblood submitted that it has complied with all pre-approval requirements and the Statement of Principles and has satisfied its obligations under s.180(5) of the Act.

• [53] Lifeblood submitted that throughout bargaining, and again during the access period, Lifeblood:
  1. communicated all changes to the Agreement through multiple communication channels including emails, MS Teams chat, physical paper flyers, the intranet (where materials could be accessed at any time) and through mobile devices via a QR code;
  2. held virtual and in person information sessions;
  3. provided information to employees at daily team "huddles"; and
  4. distributed FAQs throughout the access period, including in respect of the proposed remuneration structure and the removal of increments.

• [54] After bargaining representatives requested further information on the terms of the Agreement, Lifeblood prepared a document comparing the Agreement, to the predecessor agreements and the Award. This was sent to bargaining representatives on 1 November 2024 and uploaded to the Intranet on 14 November 2024. Consistent with the Statement of Principles, Lifeblood directed employees to the Intranet to view this document (and other relevant materials) and a link was provided to the page in communications to employees on 15 November, 18 November and 20 November 2024.

• [55] Lifeblood also submitted that Lifeblood representatives were available for further discussions, on request by employees. Where required, information provided to employees was broken down into information relevant to specific groups based on role and location and scheduled information sessions took into account different time zones and shift times.

• [56] In relation to the state-based entitlement comparison flyers, Lifeblood submitted that these flyers included information about the Agreement changes and were colour coded to best demonstrate positive, negative and neutral effects of each change. The flyers also highlighted variable' changes. Some changes were specifically flagged as variable as there was an element of complexity to them that is, they could have either positive, negative or neutral impacts based on an employee's specific circumstances.

• [57] Lifeblood submitted that the explanations of the Agreement provided by Lifeblood to employees were comprehensive, in multiple forms and forums, were adapted based on union feedback, and represents best practice. VAHPA has submitted several examples where it believes Lifeblood has not sufficiently explained the Agreement, or parts of the Agreement. Lifeblood made submissions about these issues as follows.

• [58] In respect of this entitlement, as well as others, Lifeblood submitted that in the state-based comparison flyer, it summarised the entitlement under the existing agreement, summarised the proposed change under the Agreement and specified that the impact would vary for employees.

• [59] Lifeblood submitted that the use of 'variable' connoted that the change was more complex than simply a greater or lesser benefit. In this specific example, the change meant that it was easier for employees to meet the eligibility threshold to be entitled to additional leave. However, employees were entitled to a maximum of 5 days of additional leave, and not 10 days, as was the case under previous enterprise agreements. In effect, the benefit to employees was the easier mechanism to obtain additional leave however there was some detriment. That detriment would only be suffered by some employees, and not all. Therefore, the impact varied depending on the employee's circumstances. These more complex or variable changes were then explained further in alternative ways, such as during information sessions.

• [60] VAHPA raised concerns that changes to the wording of the Family and Domestic Violence leave clause were not properly explained, specifically that references in the clause to EAP support and flexible working arrangements are no longer specified. Lifeblood submitted that clause 19.8 of the Agreement provides that all other entitlements relating to Family and Domestic Violence leave are in accordance with Lifeblood's Domestic and Family Violence Policy. This policy was provided to employees via hyperlink prior to the vote. This policy includes reference to the provisions for EAP and additional supports for employees affected. Employees continue to have access to the resources and services previously mentioned and have the additional benefit of unlimited paid family and domestic violence leave.

• [61] VAHPA raised concerns that Lifeblood did not explain to Employees that TOIL arrangements have changed, specifically that previously an employee could elect to take a portion of overtime as payment and a portion as TOIL. Lifeblood submitted that this practice remains available to employees under the Agreement. There is nothing in causes 15.7 to 15.13 of the Agreement that precludes Employees from electing to be paid a portion of overtime worked as overtime and a portion as TOIL (for example four hours of overtime could be worked and two hours paid as overtime and two hours accrued to TOIL).

• [62] In relation to classification, Lifeblood submitted that it thoroughly and comprehensively explained the classification structure. In relation to progression, Lifeblood submitted that on multiple occasions throughout bargaining and then during the access period, Lifeblood outlined to both the bargaining representatives and employees that there will be no further progression through the grades or increments during the life of the Agreement. Specifically, during the access period, Lifeblood provided an in-depth explanation to employees via information sessions about the removal of the grades and increments, the implications of the removal, the details of an upfront payment for increments which employees would have received had the grades and increments been kept; and a remuneration model that Lifeblood intends to introduce in the next agreement.
• [63] During the Access period, Lifeblood also provided individualised letters to all employees covered by the Agreement which outlined the financial impact of the salary increases and upfront payment for the removal of grades and increments. Additionally, the flyers comparing entitlements and FAQs and a Performance Based Pay flyer, were all provided on 15 November 2024 in the Access Period announcement email.

• [64] VAHPA raised concerns that it was not explained to employees that the Change of Shift allowance provisions would only apply to existing employees. Lifeblood submitted that this provision was originally communicated to all employees in a bargaining update on 16 April 2024 which clearly indicated that it would be grandfathered for existing employees only. It was further confirmed in the detailed EA Comparison document available on the Intranet from 14 November and linked in communications on 15,18 and 20 November 2024.

• [65] In relation to shift work, Lifeblood submitted that the terms and conditions of the Agreement, including the shift work entitlements, were explained in significant detail and no issues were raised. Irrespective of this, Lifeblood does not employ any employee that is rostered to work a shift that commences between 4am and 5am, as this does not fit with operational requirements. As such, Lifeblood has no intention of introducing a shift which commences between 4am and 5am as a matter of practice generally. Even if there was such an intention, employees are better off overall under the Agreement compared to the Award.

• [66] Clause 5.1 of the Agreement addresses the issues raised by VAHPA that some provisions of the Agreement are inconsistent with the NES. Clause 5.1 provides:

This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit or entitlement, the NES provision will apply to the extent of the inconsistency. The NES is available on the FWC website (www.fwc.gov.au) and the Lifeblood Intranet site.

• [67] I am required by s.193A(3) of the Act to give consideration to the views expressed by Lifeblood, the employee bargaining representatives and the employees about whether the Agreement passes the BOOT. Views have only been expressed by Lifeblood, the CPSU, VAHPA and MSAV about this matter. I have given consideration to these views. I am required by s.193A(4) to give consideration to any common view relating to whether the Agreement passes the BOOT, however there is no common view about this matter.

• [68] In its initial analysis of the Agreement, the Commission identified that the minimum base rate of pay of the following roles are below that of the corresponding classification in the Award:
  • DPU Change Planner (Agreement Classification General Level 4B Award Classification HP-L3-PP5);
  • Scientist/Laboratory Scientists (Agreement Classification Scientist Level 2A Award Classification HPL2-PP4); and
  • Blood Matters Scientist, Microbiome Safety Analyst (Agreement Classification Scientist Level 2B Award Classification HP-L3-PP5.

• [69] Lifeblood also identified that the minimum base rate applicable for Scientist Level 3C also falls below the comparable Award classification which is Health Professional Level 4 Pay Point 4. Lifeblood has proposed an undertaking to address the rates of pay for these four positions.

• [70] In response to concerns raised by VAHPA about pay increases, Lifeblood has provided a draft undertaking confirming that the wage increases in clause 40.2 of the Agreement also apply to the sub-levels set out in Appendix 2.

• [71] In relation to the classification issues raised by VAHPA, I have not been provided with information by VAHPA such as position descriptions or other evidence about the duties of Laboratory Assistants and Technician in Production which establish that Lifeblood has incorrectly mapped these roles against the Award. In any event I note that even if I was to accept VAHPA's submissions about the correct classification of these roles under the Award, the rate of pay for these roles under the Agreement is higher than the corresponding Award classification contended by VAHPA. Similarly, I have not been provided with any information in relation to the roles which VAHPA submits should be classified as Health Professional classifications under the Award which establishes that the rates of pay for these roles are below the Award.

• [72] In relation to the different shift loadings under the Agreement compared to the Award identified by VAHPA, I believe employees are compensated for these differences by the higher pay that employees are entitled to receive under the Agreement compared to the Award.

• [73] In relation to the Agreement permitting shifts to be rostered up to 12 hours, I believe that employees performing such shifts may not be better off over all under the Agreement compared to the Award depending upon how often they are rostered to perform these shifts. I note that Lifeblood has provided a draft undertaking in relation to this issue.

• [74] In relation to the Agreement, not providing:

• a requirement for a part-time employee to have an agreed pattern of work that includes days of the week that the employee will work and the starting and finishing times each day;
• that part-time employees are deemed to have agreed to work additional hours if rostered to do so, unless they indicate otherwise,

I accept the submissions of the CPSU, VAHPA and MSAV that part-time employees are not better off under the Agreement compared to the Award.

• [75] The Award requires a part-time employee and their employer to agree on a regular pattern of work prior to the commencement of employment. Further, the Award does not contain any provisions which permit the employer to deem that an employee has agreed to work additional hours by rostering an employee to work such hours. In my view a part-time employee who would otherwise work a regular pattern of work and receive overtime when working additional hours if employed pursuant to the Award is unlikely to be better off under the Agreement compared to the Award. I note that Lifeblood has provided a draft undertaking that Lifeblood and a part-time employee will agree to a regular roster pattern on commencement of employment.

• [76] In CFMMEU v Mechanical Maintenance Solutions Pty Ltd (Mechanical Maintenance)[2]

the Full Federal Court said in relation to s.180(5):

[78] To advance the purpose of enabling relevant employees to cast an informed vote, s 180(5) expressly requires that they be given, not only an explanation of the terms of the agreement, but the effect of those terms. A proposed enterprise agreement will almost invariably be intended to affect existing working conditions. The ordinary meaning of the noun "effect" includes "consequence". The obligation to explain the effect or consequences of the terms of a proposed enterprise agreement requires explanation of how those terms will affect existing conditions. Any detrimental changes to existing conditions will be of particular significance to employees. The employer's obligation under s 180(5) requires that all reasonable steps must be taken to ensure that the effect of all the terms in bringing about detrimental changes to existing conditions are explained. That means, effectively, that all detrimental changes must be explained, whether through omission or alteration of a favourable existing condition.

[79] The obligations cast upon employers under s 180(5) are undoubtedly onerous. However, the clear language and purpose of the provision means that it cannot be read as requiring anything less than that the employer must take all reasonable steps to ensure that all the terms, and the effect of all the terms, are explained. The consequence of non-compliance by the employer is the risk that an enterprise agreement approved by the employees will not be approved by the Commission.[3]

• [77] The material attached to the Form 17B provided by Lifeblood shows that Lifeblood notified employees on 18 November 2024 that voting for the Agreement would take place from 25 to 27 November 2024 and that it provided employees with the Agreement and a link to existing policies and information referenced in the Agreement. The email relevantly provided:

To assist with making a decision about how you will vote, below is a copy of the EA for your review. There is also a range of information on Connect including the information flyers and a detailed comparison of the changes by current state.

• [78] A table comparing the Agreement with predecessor agreements (described by Lifeblood as the workbook) was provided to employees and bargaining representatives and was available on the Intranet. This document was updated with the most recent version posted on 14 November 2024. Lifeblood stated that flyers comparing the key terms in the proposed Agreement with those in the predecessor agreements were pinned on noticeboards and walls and posted on sites in Perth, South Australia, Tasmania and Melbourne and were available on the Intranet during the period from October 2023 to 14 November 2024.

• [79] Lifeblood said it facilitated 27 information sessions (both in person and virtually). Employees were invited to attend sessions via online meeting invites, by their Team Supervisors, and a schedule was available on the Intranet. A link to this schedule was also included in a MS Teams EA Group post on 18 November 2024. Supervisors were also trained on the effect of the terms and conditions of the Agreement to enable them to better assist employees to understand the Agreement's effect. Lifeblood provided a copy of the presentation that was made to employees to explain the terms and effect of the Agreement. During the period from 18-22 November 2024, 'Drop in booths' were set up at Melbourne Processing Centre to enable Employees to approach Managers individually or in groups with questions about the Agreement.

• [80] The workbook and the flyers comparing the key terms in the Agreement with those in the predecessor agreements contained colour coding which indicated with respect to each term in the Agreement and the corresponding predecessor agreement whether:
  • The Agreement is more favourable than the predecessor agreement
  • The Agreement is the same as the predecessor agreement
  • The Agreement is worse than the predecessor agreement
  • The Agreement creates a variable outcome with different employees being either better or worse off or their conditions being unchanged.

• [81] VAHPA and MSAV submitted that the workbook was not distributed to employees with the relevant voting materials, the Agreement and the FAQs and that reductions in entitlements were effectively only discussed by Lifeblood if employees raised them.

• [82] There does not appear to be any requirement that the workbook be provided at the commencement of the access period with the voting materials, the Agreement and the FAQs, however ideally it should have been to ensure that employees could access all of the relevant material one place. The issue between the parties appears to be whether the workbook was sufficient to explain to employees how the Agreement will alter their existing minimum entitlements and other terms and conditions of employment. Paragraph 8 of the Statement of Principles provides some guidance about this matter in that it states that where a proposed agreement will replace an existing enterprise agreement, it will generally be sufficient to explain:

• the differences in entitlements and other terms and conditions between the proposed agreement and the existing agreement; and
• the differences in entitlements and other terms and conditions between the proposed agreement and any applicable modern award provisions that have been varied since the existing agreement was made (including award variations that have not yet come into effect),

• [83] The CPSU, VAHPA and MSAV have not raised any concerns about Lifeblood's explanation about the Award, so my inquiry is limited to whether the workbook explained the differences in entitlements between the proposed agreement and the existing agreement. In my view, if the differences in entitlements are clear on the face of the workbook, this satisfies Lifeblood's obligation to explain how those terms will affect existing conditions, with specific reference to any detrimental changes.

• [84] VAHPA and MSAV were critical about Lifeblood only communicating the improvements in entitlements both prior to and during the access and the vote and submitted that reductions in entitlements were effectively only discussed by Lifeblood if employees raised them. It is true that Lifeblood distributed a number of communications which emphasised why employees should vote in favour of the Agreement. VAHPA went as far as submitting that Lifeblood's conduct in this regard was consistent with relies upon paragraph 10 of the Statement of Principles. I do not accept this submission. The Act does not preclude an employer from encouraging employees to vote in favour of an agreement, promoting favourable aspects of the agreement and explaining the consequences of voting 'no'. The materials which Lifeblood distributed to employees which encouraged them to vote in favour of the Agreement did not purport cover all aspects of the Agreement including those that left employees worse off compared to the predecessor Agreement. The document which purported to explain the effect of all the terms in bringing about detrimental changes to existing conditions was the workbook. I have had regard to the workbook in considering the submissions by the parties about the specific conditions raised by the VAHPA and MSAV.

• [85] The Form F18 filed by MSAV stated that with respect to annual leave, subclauses 22.21 to 22.34 of the Agreement provide that an employee can only accrue one extra week of annual leave per annum, either for being on call on Saturdays or Sundays, or for working on at least 10 ordinary hours shifts on a Saturday, Sunday or Public Holiday. Under sub-clauses 21.7 to 22.10 of the Australian Red Cross Blood Service General Enterprise Agreement Victoria 2017, (the 2017 Victorian Agreement) an employee can accrue 2 weeks of extra annual leave per annum, one week for being required or rostered on call for more than 4 hours on a minimum of 10 weekends and one week for working more than 4 hours on a minimum of 10 weekends.

• [86] The workbook indicates through colour coding that the Agreement is worse than the 2017 Victorian Agreement and states that the current entitlement is 1 additional week for shift (10 weekends in 12 months) AND 1 additional week for oncall (10 weekends in 12months), 2 weeks additional in total. It also indicates that the entitlement under the Agreement is one additional week only in respect of either shift work (10 weekends and PH in 12 months) OR prorata for oncall. In my view, this is a clear explanation of how the Agreement's terms in relation to additional annual leave affects existing entitlements.

• [87] In relation to evidentiary requirements for personal leave, I note that in the 2017 Victorian Agreement, employees are permitted to take up to five days of personal leave in any one anniversary year of employment without the need to provide evidence, however Lifeblood can require an employee to provide evidence in support of an application for any amount of personal leave under the Agreement. This is not a change in entitlement but a change to when evidence is required in order to access the entitlement. Medical certificates are acceptable evidence but not mandatory. As the evidence includes documentation such as statutory declarations and other evidence that would satisfy a reasonable person of the need for the leave, I do not believe that this requirement is onerous. I believe that the change in evidentiary requirement will have a minimal effect on employees' entitlements and obligations so I do not accept that any failure by Lifeblood to explain this change contravenes the Statement of Principles or s.180(5).

• [88] I accept the submissions of VAHPA that the 2017 Victorian Agreement provides for:

• Flexible working arrangements and other supporting measures, such as changes to work location where possible;
• Access to the Employee Assistance Program;
• Treating matters of family or domestic violence confidentially and only disclosing information if required by law or to maintain the safety of the employee.

However, these matters are now covered by policy which may be altered during the life of the Agreement. These changes do not appear to have been explained to employees by Lifeblood.

• [89] I accept the submissions of Lifeblood that there is nothing in clauses 15.7 to 15.13 of the Agreement that precludes employees from electing to be paid a portion of overtime worked as overtime and a portion as TOIL (for example four hours of overtime could be worked and two hours paid as overtime and two hours accrued to TOIL). Although the wording in clause 16.8 of the 2017 Victorian Agreement may have changed, the effect of the entitlement has not.

• [90] I do not accept VAHPA's contention that Lifeblood did not explain to employees that the Change of Shift allowance provisions would only apply to existing employees. The workbook states in relation to shift allowance 'grandfathered for Vic Gen and Vic Sci (as per current entitlement)'. The use of the term 'grandfathered' is commonly used in reference to terms and conditions of employment to refer to preservation of conditions for existing groups of employees. Although written in a shorthand way, I believe the note is sufficiently clear to communicate that the Change of Shift allowance would only apply to existing employees in Victoria.

• [91] Under sub-clause 12.4i of the Agreement, a shift starting between 4am and 5am is considered a morning shift, which would attract a shift allowance of $30 per shift. Under sub-clauses 16.2 and 16.3 of the 2017 Victorian Agreement, a shift starting between 4am and 5am is a night shift, which currently attracts a greater shift allowance. I accept that this change was not clearly explained to employees. Lifeblood has submitted that Lifeblood does employ anyone that is rostered to work a shift commencing between 4am and 5am.

• [92] VAHPA's complaint in relation to classification was that Lifeblood did not explain the classifications and structure, particularly the changes that could impact an employee's ability to progress to higher grades. Lifeblood's response was that it provided individualised letters to all employees covered by the Agreement which outlined the financial impact of the salary increases and upfront payment for the removal of grades and increments. Lifeblood submitted that on multiple occasions throughout bargaining and then during the access period, Lifeblood outlined to both the bargaining representatives and employees that there will be no further progression through the grades or increments during the life of the Agreement. As Lifebood advised employees their pay under the Agreement and that there will be no further progression through the grades or increments during the life of the Agreement, I am satisfied that Lifeblood explained to employees the differences in their entitlements with respect to classifications between the Agreement and the predecessor agreements.

• [93] In my view, the differences in entitlements between the Agreement and the predecessor agreements are clear on the face of the workbook in relation to all of the conditions which the parties have made submissions about, apart from domestic violence leave, evidence for personal leave and a shift starting between 4am and 5am. As this meets the requirements of Paragraph 8 of the Statement of Principles, I am satisfied that Lifeblood has complied with s.180(5) of the Act except with respect to domestic violence leave and a shift starting between 4am and 5am. I have already found that the change in evidentiary requirements for personal leave will have a minimal effect on employees' entitlements and obligations, so I do not accept that any failure by Lifeblood to explain this change contravenes the Statement of Principles or s.180(5).

• [94] If I have a concern that an agreement does not meet the requirements set out in ss.186 and 187 of the Act, I may approve the agreement under s.186 if I am satisfied that an undertaking under s.190(3) meets the concern. Section 190(3) permits me to accept a written undertaking from one or more employers covered by the agreement if I am satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

• [95] I must not accept an undertaking under s.190(3) unless I have sought the views of each person who the Commission knows is a bargaining representative for the agreement.

• [96] I note that it is permissible to accept an undertaking under s.190 of the Act in order to overcome an employer's failure to comply with s.180(5).[4]

• [97] Having regard to the issues raised by CPSU, VAHPA and MSAV, I have a concern that each award covered employee, and each reasonably foreseeable employee, for the Agreement may not be better off overall if the Agreement applied to the employee than if the Award applied to the employee because of issues:

• raised above in relation to part-time employment and twelve hour shifts; and
• previously raised with Lifeblood that Lifeblood has provided proposed undertakings to address.

• [98] My preliminary view is that the issues which I have identified with respect to the BOOT can be addressed by Lifeblood providing undertakings that:

1. Address the minimum rates payable to the roles of DPU Change Planner, Scientist/Laboratory Scientists, Blood Matters Scientist and Scientist Level 3C.
2. Lifeblood will agree to a regular roster pattern with part-time employees.
3. Lifeblood will not apply the note to 7.10 and note 2 to clause 15.2 of the Agreement.
4. Lifeblood confirms that the wage increases in clause 40.2 of the Agreement also apply to the sub-levels set out in Appendix 2.
5. In respect of clause 8.3, Lifeblood confirms that 12 hour shifts are by agreement between Lifeblood and the employee and are at the employee's initiative.

• [99] My preliminary view is that the issues which I have identified with respect to s.180(5) can be addressed by Lifeblood providing undertakings that:

1. It will not roster an employee to work a shift commencing between 4am and 5am during the period that the Agreement applies to employees; and
2. For employees experiencing family and domestic violence, Lifeblood will provide the following support:
   • Flexible working arrangements and other supporting measures, such as changes to work location where possible;
   • Access to the Employee Assistance Program; and
   • Treating matters of family or domestic violence confidentially and only disclosing information if required by law or to maintain the safety of the employee.

• [100] I believe that it is appropriate to invite Lifeblood to provide undertakings pursuant to s.190 of the Act and for the bargaining representatives to provide their views about any proposed undertakings before making a final decision in relation to the matter.

• [101] In the circumstances, I make the following directions:

1. If Lifeblood wishes to provide any undertakings to address the matters in this decision, it is required to send the proposed undertakings to the Commission and all Bargaining Representatives by email by 4:00pm AEST on Thursday 10 April 2025.

1. If the Bargaining Representatives wish to provide any views in relation to any proposed undertakings, they are required to send these views to the Commission and the Employer by email by 4:00pm AEST on Monday 14 April 2025.

• [102] I will issue my final decision in the matter following receipt of any further material provided by the parties in accordance with these directions.

[1] [2018] FWCA 2283

[2] [2022] FCAFC 15

[4] Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd [2020] FWCFB 958, [103]-[108]

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