Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Blood donor leave.

Introduction

[1] Pursuant to s.156(1) of the Fair Work Act 2009 (FW Act), the Fair Work Commission (the Commission) is required to conduct 4 yearly reviews of modern awards.

[2] The Shop, Distributive and Allied Employees Association (SDA) has made an application to insert provisions relating to leave for blood donors into the Pharmacy Industry Award 2010, the General Retail Industry Award 2010, the Hair and Beauty Industry Award 2010, the Fast Food Industry Award 2010 and the Mannequins and Models Award 2010 (the Awards). The proposed provision for each award in the form ultimately advanced by the SDA was as follows:

CLAUSE X BLOOD DONOR LEAVE

X.1 A permanent employee shall be entitled to up to 2 ordinary hours' paid Blood Donor Leave, without deduction of pay, on a maximum of four occasions per year for the purposes of donating blood.

X.2 The employee shall notify his or her Employer as soon as possible of the time and date upon which he or she is requesting to be absent for the purpose of donating blood.

X.3 The employee shall arrange for his or her absence to be on a day suitable to the employer and be as close as possible to the beginning or ending of his or her ordinary working hours.

X.4 Proof of the attendance of the employee at a recognised place for the purpose of donating blood and the duration of such attendance shall be produced to the satisfaction of the employer.

[3] The SDA initially also sought variations with respect to leave for bone marrow donors as part of this review; however the claim was subsequently withdrawn. 1

[4] The interested parties who participated in this review included the SDA, the Master Grocers Association (MGA), Australian Business Industrial (ABI), the New South Wales Business Chamber (NSWBC), Business SA, the Pharmacy Guild of Australia (the Guild), the Australian Industry Group (Ai Group), the National Retail Association (NRA), the Australian Red Cross Blood Service (Australian Red Cross), and the Victorian and South Australian Governments.

Witness evidence

[5] The SDA filed 13 witness statements in support of its application. Six of these witnesses were required for cross-examination. A number of the witnesses gave evidence that enterprise agreements which contained blood donor leave provisions applied to their employment. Whilst the nature of these enterprise agreement provisions was not examined, varying degrees of utilisation of these provisions was referred to.

[6] Consistently, the witness evidence demonstrated that employees had a range of caring and domestic duties as well as extracurricular commitments, in addition to their working hours. They stated the combination of these matters compromised their ability to donate blood outside of working hours. The witnesses all supported the application and, in general, they considered blood donor leave to be a fair entitlement in a modern award and of considerable benefit to the community. Many acknowledged that they were only able to donate blood because they were employed on conditions where the leave was a provision in their enterprise agreement.

[7] The evidence of the six witnesses who were the subject of cross-examination is summarised below.

Stacey Hunter

[8] Ms Stacey Hunter was a part-time employee who worked at the Birkdale Woolworths store located in Queensland. She had for 5 years worked a roster of 34 hours per week, Monday to Thursday 5:45am to 2:30pm each day. She gave evidence that she donated blood three to four times per year, and used her paid entitlement under the Woolworths enterprise agreement to donate blood. She considered it a worthwhile community service and was able to do so, as she was healthy and eligible to donate blood and did so because the blood was needed. She was also motivated by family circumstances and conscious of the need to help in society.

[9] Ms Hunter donated blood when the blood donation bus visited the car park near her workplace, and she arranged to finish her shift 90 minutes early and attend the bus to donate. She allowed herself a short period to recover and went home for the day after that. She stated her employer was supportive of her donating blood and that the company had encouraged her in the past to use this entitlement. She stated she would find it difficult to donate blood as regularly if she did not have the provision to do so during work, as she was busy as a family carer with household duties outside of work. In cross-examination, Ms Hunter accepted that there was a blood donation facility that was roughly a ten minute drive from her home 2, and that if she did not have a blood donor leave entitlement she would continue to try to donate blood, but it would be more difficult.3 She could miss her regular Friday fitness class on a few occasions per year to donate blood if she had to.4

Emanuela Caruso

[10] Ms Emanuela Caruso was employed as a part-time Sales Assistant by Myer at its Bourke Street store in Melbourne. Her employment was covered by the Myer Stores Agreement 2010. Her hours of work over a four week cycle varied. The entitlement under the agreement allowed blood donation three to four times per year at the blood donation centre in Bourke Street, approximately five minutes walking distance from the workplace. Her evidence was that the absence from work to undertake this donation was not more than two hours at a time, and the other team members covered her absence to enable her to complete and discharge her duties. In cross-examination, the possibility of Ms Caruso giving blood in her own time was raised with her. In response, Ms Caruso identified difficulties in doing so because of the need to make bookings in advance, arrange transport to a blood donor facility and fit it in with her family commitments. 5

Glenn Smith

[11] Mr Glenn Smith had recently been employed by JB Hi-Fi as a store person, before gaining employment at Radio Rentals as a full-time employee. His evidence was that the blood donation centre was a 10 minute walk from his place of work and when he had donated blood, the entire procedure had not taken more than one hour and 15 minutes. He stated that due to his family and caring responsibilities and sporting commitments on some weekends, he found it difficult to donate blood and could not afford to take time off work without pay to donate blood or to attend after work. In cross-examination, Mr Smith accepted than when he had donated blood while employed at JB Hi-Fi, he had done so on a day off or after work and not during working hours. 6 He could continue to donate blood after work on the assumption that the closest blood donor clinic closed at 7.30pm.7

Trevor Zylstra

[12] Mr Trevor Zylstra was employed under the General Retail Industry Award 2010, on a full time basis, at Michael’s Cameras and Video Digital, located in the Melbourne CBD. He worked 39 hours per week, including every second weekend. He has two teenage sons and his wife worked full-time also. He lived in Gisborne, 54 km from the Melbourne CBD, which took over an hour to commute to work. A health issue motivated him to commence donating blood twice a year until about 10 years ago. He stated that blood donation was a benefit to the community in saving lives, but he found it difficult to donate blood due to his family and work commitments. He was not aware of any blood donation Centre in Gisborne. He stated it was difficult for him to take time off work without pay, to donate blood and it is difficult to change his roster due to the hours he worked and his family commitments. He supported the introduction of a provision that allowed him to donate during working hours. In cross-examination, Mr Zylstra accepted that there was a blood donation centre about 15 minutes’ drive from his home, and he could possibly donate blood on the occasional Wednesday because he was not rostered to work on that day. 8 He could also possibly do it on some Saturday mornings during school holidays.9

Dale Allen

[13] Ms Dale Allen was an inventory assistant employed by Woolworths in Leongatha. She worked 28 hours per week and had donated blood on only one occasion, but intended to donate more in the future, using her paid entitlement under the Woolworths Agreement. She stated she donated at the Mobile blood clinic that regularly visited Leongatha. The process took one to two hours including recovery time, and she had never had any difficulty using the entitlement in the Woolworths Agreement to donate blood. However, she stated that given her caring responsibilities for her two children and other household and extracurricular activities, if she did not have entitlement in the agreement it would be significantly more difficult to donate blood. In cross-examination, Ms Allen accepted that she would make every effort to continue to donate blood even if she did not have a paid leave entitlement. 10

Deborah Allen

[14] Ms Deborah Allen was employed as a permanent part time employee at Target in Erina, New South Wales. She worked 36 hours per week as a customer liaison and supervisor and was employed under the Target Australia Retail Agreement 2012. Ms Allen stated she donated blood three to four times a year for ten years, having been consistently donating for the last two years using the entitlement under the agreement to donate blood. Her evidence was that she was a “therapeutic donor”, as she was someone who needed to donate blood to control the high iron levels in her blood as a result of a condition known as hemochromatosis. High iron levels, she stated, can result in her feeling fatigued and leaving her body with aches and pains. Without blood donor leave, it would be difficult for Ms Allen to utilise the personal leave provisions to donate blood as a preventative measure to maintain her health, as a prerequisite of the personal leave provision was that she was unfit for work. She stated that the blood she did donate was not always able to be used for those in need and it depended on the reading of the iron levels. If the iron levels were appropriate, the blood was used for donation purposes.

[15] Ms Allen stated that she made her blood donation at the mobile clinic in Wyong, and she made an appointment to donate to coincide with the commencement of her shift for the day. She stated that the timing of this donation meant that she usually started her shift one to two hours late, but she always provided her employer with sufficient notice of her intentions to donate blood. She had never had any difficulty with her employment when it came to using the entitlement to blood donor leave.

[16] Her evidence was that if she did not have the entitlement in the enterprise agreement, it would be very difficult for her to donate as regularly, as she only had two days off work per week and she had family carer responsibilities in relation to her grandchildren, along with general household maintenance duties. Accordingly, she strongly supported the application. She stated that the blood donor leave entitlement had provided her with a benefit, to allow half an hour to two hours per occasion, four times per year, to donate blood.

[17] In cross-examination, Ms Allen said that because of her personal commitments she preferred to access her blood donor leave entitlement in order to give blood, but if she did not have such an entitlement she would nonetheless continue to donate blood. 11

[18] The witness statement of the following witnesses were received into evidence, but there were not cross examined. A summary of their evidence is set out below.

Nicole Elmer

[19] Ms Nicole Elmer was employed at Ritchies Super IGA in Emerald, Victoria. She was employed under the General Retail Industry Award 2010, on the registers at the front end of the supermarket, as a supervisor. She worked 38 hours per week. She had caring responsibilities for her two daughters, aged three and 13, and her husband worked 42 hours per week, Monday to Friday. She stated she had been donating blood on two occasions per year for the last three years. She donated blood because it saves lives, especially for children who suffer from leukaemia and require blood. She said she made a special effort to donate blood on Easter Sunday because she believed that is when there is a high demand for it in the community.

[20] Her evidence was that it was very difficult to make appointments to donate blood outside of work hours and that she needed assistance to supervise her youngest daughter while she made the donation. In addition, she stated she could not afford to take time off work without pay to donate blood, and it was difficult to justify the change to her roster for the purposes of donating blood. She considered there would be sufficient staff to cover the registers if she was allowed paid leave, for two hours, prior to the end of her shift to donate blood. Whilst she acknowledged that there was sufficient time on Fridays after she finished work at 1:30 pm, to possibly donate blood, she stated that she used this time to do her weekly grocery shopping, prior to picking up the children from school and childcare.

Julie Dingeldei

[21] Ms Julie Dingeldei was employed by Spotlight in Port Macquarie, New South Wales. She was employed as a Level One Retail Employee under the General Retail Industry Award 2010. She had been employed on a full time basis until three years ago, when she changed her hours to work part time to care for her husband. She now worked 39 hours over a fortnight. She stated she had donated blood for 10 years. Until two years ago, she would donate on average twice a year to a maximum of three times a year and the appointments would take approximately one hour.

[22] She stated her place of employment was approximately 37 km from home, and the blood donor centre where she donated blood was very close to her place of work in Port Macquarie. She stated that she found it difficult to donate blood outside of her rostered work times because of her caring responsibilities at home, the distance from home and the opening hours of the closest blood donation centre in Port Macquarie. She said she could not afford to take unpaid leave to donate blood, and could not easily change her roster to donate blood due to her current caring responsibilities for her husband. She stated she therefore strongly supported the claim for blood donation leave.

Michael Driscoll

[23] Mr Michael Driscoll was employed at Bunnings as a full-time employee located at Oxenford, Queensland. He stated he donated blood three to four times per year, and used the entitlement under the Bunnings enterprise agreement. He stated he donated blood as it was in the best interests of society and was an essential community service, and blood donation also acted as a “mini health check-up” to allow him to monitor his iron levels etc. He stated that he donated at a clinic near his work site. A travelling donation bus visited the car park near his work, and he made an appointment in advance. He stated that he donated blood in the middle or towards the end of his shift, overlapping with his lunch break, depending on the time of the day. The donation took 30 to 45 minutes and his employer was supportive of employees donating blood. His evidence was that he had not had any difficulty in accessing the entitlement and that he was encouraged to participate in blood donation. If his employer did not support blood donation, and the blood bank did not make it so easy to donate, he would not be able to participate as regularly, due to his family commitments.

Michael McErlane

[24] Mr Michael McErlane was also employed at Bunnings as a full-time Sales Assistant. He worked 38 hours per week, with Fridays and Saturdays as days off. He stated that he had been donating blood on and off for 44 years. He decided to use the entitlement to paid blood donation leave contained in the enterprise agreement to participate in donations three to four times per year. He stated that he was aware of the importance of blood donation as a community service.

[25] He donated blood at the community centre, and he received a regular notification to donate in advance of the clinic visiting the centre, which encouraged regular donors to make appointments in advance. This process enabled him to provide his employer with several weeks’ notice, and to use the entitlement under the enterprise agreement. He stated that if the clinic did not periodically visit in this manner, it would be significantly more difficult and more time consuming for him to donate blood. He stated the process took one to two hours and that management at Bunnings was supportive of him donating blood and had never had any difficulty with the requests for blood donor leave. He supported the application to insert the provision for blood donor leave into the Awards, as he considered it a fair entitlement that helped save lives.

Drew Gilson

[26] Mr Drew Gilson was also employed at Bunnings, located in Toowoomba West in Queensland. He was a full-time employee, working 76 hours on a two week cycle. He stated that for about five years until 2015, management would arrange for the Australian Red Cross to provide a driver and car to transport team members to donate blood at the General Hospital. There would be two to four people transported together to the blood donation centre at a given time, and the process would commence at 8:00am until 12:00pm noon. He recalled that they would be away for work between one and a half hours to two hours on each occasion.

[27] He stated that on each occasion, management would ensure that the workplace was adequately staffed while a team member in a particular department was donating blood. He acknowledged that the blood donation bank at which he donated blood had since closed and moved and that he had not donated blood since management had ceased arranging the group activity. He recognised that he had not recently used his entitlement to paid blood donor leave under the enterprise agreement, however due to his work and family commitments he would find it difficult to donate blood outside of work hours.

Raelene Robertson

[28] Ms Raelene Robertson was employed with Woolworths in Wynyard, and was covered by the Woolworths National Supermarket Agreement 2012. She stated she worked 38 hours per week and had been donating blood for approximately five years. She accessed the blood donor leave entitlement under the enterprise agreement on four occasions per year, with the entire process taking about one hour and 20 minutes. She stated that she gave her employer sufficient notice when she chose to donate blood and arranged her appointments so that she was permitted to leave up to two hours prior to the end of her shift. She stated that she did not work weekends, but used that time to complete household chores and to spend time with her children and her husband who works nightshift during the week. She stated the blood donor centre was located approximately 50km away from her home and that it was easier to attend the blood donor centre on the way home from work.

[29] Her last donation of blood occurred in early March of this year. Soon after that donation she received a text message from the blood bank which advised her that her blood had been used to save the life of an individual involved in an accident in Victoria. She stated she had been delighted by the message and considered herself very fortunate that she worked for an employer who allowed her to donate blood near work as regularly as she could without loss of pay. She stated she could not afford to take unpaid leave to donate blood or to donate outside of working hours as regularly as she did.

Joanne Nowland

[30] Ms Joanne Nowland was employed at Woolworths Supermarket at Noosaville on a part-time basis under the Woolworths National Supermarket Agreement 2012 as a Retail Employee, working 37.5 hours on a fortnightly cycle. She was also employed by CSR Sugar as a Sales Representative on the days that she was not rostered to work at Woolworths. She stated that she lived with her husband. She stated her daughter and two grandchildren lived with her for over three years until 12 months ago.

[31] She stated that she donated blood twice a year using the benefit under the Woolworths Agreement. She stated that when she has donated blood, she has done so after lunch at approximately 1:30 pm in the afternoon, participating in the donation at a mobile blood donation centre located approximately 4 km away from work in Tewantin. She stated that she was only away from work for about 45 minutes to an hour for this process and that she gave her employer sufficient notice of her appointment to donate blood. She stated the hours of operation of the mobile blood donation centre she attended near her workplace coincided with her hours of work at Woolworths, which made it easily accessible to attend during those times. She considered that blood donation was a community service and supported the application to insert blood donation leave as an entitlement into the modern award.

[32] No other party adduced any witness evidence.

Submissions

SDA submissions

[33] The SDA contended 12 that blood donor leave played a significant role in encouraging regular blood donations, an important activity which was essential to the community, and referred to the 2016 annual report of the Australian Red Cross, which estimated that a third of all Australians will need blood in their lifetime and that a single blood donation can save up to three lives. The SDA also contended that a fall in blood donations puts at risk the level of blood products needed to treat cancer patients, accident victims and women giving birth.

[34] The SDA’s submissions characterised the operation of its proposed clause as follows:

“[11.1] Clause X.1 confines the paid entitlement of BDL [blood donor leave] to full time and part time employees, during ordinary hours of work without loss of pay for up to two hours on a maximum of 4 occasions per calendar year.

[11.2] Clauses X.2 and X.3 ensure adequate notice will be given by the employee when he/she wishes to attend a donation centre to donate blood. The employee is also required to arrange an appointment on a day suitable to the employer as close to the beginning or ending of his/her shift. These provisions ensure consultation between the employer and employee providing certainty for the employer such that any disruption or cost to the business is negligible.

[11.3] Clause X.4 places an obligation on the employee to provide proof of attendance at a recognised place where blood is donated to the satisfaction of the employer. This gives the employer reassurance that the blood donor leave requested was used for its intended purpose.

[11.4] BDL will not accrue from year to year like other forms of leave, such as personal or annual leave, if it is not used…” 13

[35] The SDA submitted that employees were not entitled to access personal leave under s.97 of the FW Act for the purpose of donating blood, because the Australian Red Cross does not characterise donating blood as “medical treatment”, and accordingly does not issue medical certificates, and employees are not unfit for work when they donate blood.

[36] It was submitted that blood donor leave was a “common feature” in historical State Awards in Victoria, South Australia, New South Wales, and to an extent, in Queensland. The SDA included as part of its submissions a list of State Awards and current enterprise agreements with blood donor leave provisions. In relation to retail industry enterprise agreements, the SDA submitted:

“[39] BDL has remained a common feature in all the agreements that continue to cover independent grocery and liquor retailers… and the SDA being a party to these agreements is not aware of any concerns or objections to the existence and application of BDL in these agreements. The fact that the MGA…have never raised objections to the inclusion of BDL, is evidence that BDL is considered a fair work place entitlement that can be accommodated by any size business. The cost and burden of paid BDL on any size business is negligible…” 14

[37] The SDA submitted that its witness evidence demonstrated the following:

“[53] The SDA witnesses illustrate how the absence of BDL for an employee who donates blood can impact adversely on a donor’s level of income. The impact can be the result of costs associated with travel which is greater for a blood donor residing in regional areas who need to travel to a clinic that is further away from home compared to the distance of a mobile clinic near his/her place of work while they are at work. This is further exacerbated by the restricted operating times of mobile clinics in isolated areas available to an employee who regularly donates blood. There is also a potential added cost of child care or costs associated with caring for a family member with a disability, if the donor cannot make alternative arrangements while donating blood. This is so regardless of the hours of operation of the clinic. However, in such cases the donor will mostly likely not donate if not for the provision of BDL.

[54] Alternatively, changing set rosters for an employee with caring and family responsibilities outside work who chooses to donate blood can be just as problematic for the employee as well as impose an unnecessary cost to the business. Whereas the cost on business of providing BDL to an employee who chooses to donate blood near work, requiring only a relatively short absence from work is negligible.”  15

[38] Accordingly, it was submitted that the inclusion of the claimed blood donor leave provisions were necessary to achieve the objectives set out in s.134(1)(a) of the FW Act, having regard to the relatively low pay of employees in the associated industries and their historical reliance on their respective modern awards. Further, the impact of the inclusion of blood donor leave provisions in modern awards on employers would be minimal and as such they would not discourage further collective bargaining from occurring around the issue. The inclusion of blood donor leave would not adversely affect the efficient and productive performance of work. The notification and evidentiary restrictions proposed by the SDA would adequately mitigate the impact that an employee taking blood donor leave would have on the business. It was further submitted that the donation of blood promoted team building in businesses, leading to increased productivity. The SDA noted that the Australian Red Cross operates a successful program whereby businesses may sign up and promote group blood drives. It was submitted that this program was estimated to have saved nearly one million lives in 2016.

[39] It was also submitted that given the limited scope of the proposed variations, they would not create a regulatory burden on businesses or impact negatively on employment. The SDA estimated that a minimal amount of employees will choose to utilise the blood donor leave and that together with the notification requirements, would cause a negligible effect on business.

[40] The SDA submitted that the absence of a modern award provision relating to blood donor leave may cause detriment in a “broad sense” for regular blood donors, “…who cannot participate in a social activity that is viewed as an essential community benefit.” 16 The SDA submitted that donating blood is an activity of “high social utility” and may increase an employee’s own sense of self-worth.

[41] Lastly, it was submitted that the proposed variations would encourage employees to donate blood. The donation of blood, “is essential to ensure adequate supply of blood and blood products to meet clinical demand and save lives.” 17 Accordingly, there is high social utility that supports making the variation, with a minimal cost to business.

Australian Red Cross submissions

[42] The Australian Red Cross submitted that more than 25,000 blood donations were required weekly to meet the needs of its patients who require and rely on the Blood Service to provide them with the life-saving products and clinical services. The need for Australian blood products was increasing and the more donations received from Australian donors the greater Australian Red Cross Blood Service’s ability to provide the community with a safe, secure and cost effective supply of quality blood products.    It submitted:

“Work place blood donor groups are some of our biggest donors. Through Red25, the Blood Services group donation program, organisations can track their donations and work together to help save lives through blood donation. Last year, over 7,000 organisations donated as part of the Red25 programme, engaging nearly 11,000 members and donating 330,000 times. This equates to nearly 1 million lives saved or positively affected by blood donation.

Last year, more than 337 organisations covered by the above named Awards participated in the Red25 programme with some 8,882 donations collected. Employees within the retail sector were some of the most generous donors.

Donating blood comes with the ultimate feeling of doing good for the community. Whether the recipient of the donation is the driver, or the powerful sense of altruism, donating blood saves lives. However many donors tell us that if they had the ability to visit a Donor Centre during business hours, they would donate more blood, more often. We hope and expect that Blood Donor Leave would further promote and drive an increase in blood donations among those employees covered by the above named Awards.” 18

[43] The Australian Red Cross supported the application, and anticipated that if granted it would lead to increased blood donations.

Victorian and South Australian Governments’ submissions

[44] The Victorian Government made submissions in support of the SDA’s claim. The relevant Minister submitted:

“Blood donation is an important public service. At various times the Red Cross faces critical blood shortages and so everything possible should be done to make it easy for people to donate blood. I note that the average time it takes to donate blood is between one and two hours, not including the time it takes to get to and from a collection centre. It is therefore impractical for many workers to donate blood during work breaks. Donating blood before and after work will also impact on workers who have family responsibilities.

The Victorian Government is, of course, mindful of the potential impact that including a new type of leave could have on businesses. We believe that the application by the union in this case has been developed in a way that seeks to mitigate the impact on businesses.” 19

[45] The Victorian Government noted that the average time taken to donate blood is between one and two hours (exclusive of travel time), which makes it impractical for many employees to donate during their allotted work breaks. The Victorian Government further noted that donating before or after work may negatively impact employees who have family responsibilities.

[46] The South Australian Government concurred with the Victorian Government’s support for the application, on the basis that the leave would be taken at a time that is both convenient and agreeable to the employer. 20

Ai Group submissions

[47] The Ai Group’s interest was in relation to the Fast Food Industry Award 2010, the Hair and Beauty Industry Award 2010 and the General Retail Industry Award 2010, and additionally represented the Hair and Beauty Australia Industry Association (HABA) in respect of the Hair and Beauty Industry Award 2010. The Ai Group and HABA strongly opposed the inclusion of blood donor leave in those awards. 21 It submitted the variations sought were not “necessary”, as employees are not compelled nor required to donate blood, and the activity may be undertaken outside of work hours. It argued that the modern awards objective was “not concerned with advancing social causes or enhancing the entitlements of employees engaged in such causes”.22 It made reference to the increased cost and operational difficulties that would be incurred by employers, and submitted that the SDA had not provided a “cogent” reason for the Commission to depart from the approach generally taken in refraining from including new forms of leave in modern awards. It was more appropriate for these matters to be dealt with during enterprise bargaining.

MGA submissions

[48] The MGA is a national employer industry association representing independent grocery and liquor stores in all States and Territories across Australia, with its members comprising a significant subsector of the retail industry. The MGA opposed the variations sought by the SDA to the General Retail Industry Award 2010. 23 The MGA submitted that its members were predominately small businesses and would be unable to afford to pay for additional leave entitlements. However, the MGA acknowledged that blood donation was an important social issue in their submissions. It submitted that any provisions relating to leave for employees to donate blood would be more appropriately contained within enterprise agreements and that the omission of such an entitlement in the General Retail Industry Award 2010 did not prevent or deter employees from donating blood in their own time. The inclusion of the variations, “would unfairly prejudice small business employers who are continually burdened with increased costs of running a business and may act as a deterrent to employing future staff; this is especially the case with casual employees who will be entitled to take blood… leave under the proposed clause.”24

[49] The MGA rejected the SDA’s claim that blood donor leave was a fair entitlement that ensures a minimum safety net of terms and conditions contained within modern awards. Addressing the modern awards objective in s.134 of the FW Act, the MGA submitted the SDA’s application did not meet the considerations contained in ss.134(1)(a) to (h), and that, in addition, the consideration of fairness is to be assessed from the perspective of both the employees and employers covered by the modern award in question. 25 Further, the MGA submitted the current blood donor leave claim was not necessary for the modern awards objective to be achieved.

The Guild’s submissions

[50] The Guild opposed the variations sought by the SDA to the Pharmacy Industry Award 2010. 26 The Guild argued that the task before the Commission in conducting the review of the Pharmacy Industry Award 2010 was to ensure permitted and required terms were included only to the extent necessary to give effect to the modern awards objective, and that the SDA’s claim was not necessary to achieve that objective. The Guild submitted that the SDA had not adduced any evidence relevant to community pharmacies, or any probative evidence in support of the merits of including blood donor leave provisions in the Pharmacy Industry Award 2010.

[51] The Guild refuted the SDA’s assertions that blood donor leave was a common entitlement contained in community pharmacy pre-modern awards and also that it was a common term found in enterprise agreements. The Guild noted that of the 14 awards that were considered during the modernisation process that resulted in the making of the Pharmacy Industry Award 2010, only one award from South Australia (being the Retail Pharmaceutical Chemists Award) contained reference to an entitlement for blood donor leave. The Guild further submitted that the SDA had not identified a single enterprise agreement containing a blood donor leave entitlement which would apply to employees covered by the Pharmacy Industry Award 2010. Nevertheless, enterprise agreement terms are the result of bargaining, which means that the employers may agree to the inclusion of a paid blood donor leave provision as a trade-off for other productivity gains.

[52] The Guild submitted that the inclusion of the proposed term into the Pharmacy Industry Award 2010 would cause a significant cost and regulatory burden on businesses. The Guild submitted that community pharmacies generally had lower staff numbers, and that in order for an employee to take blood donor leave, another employee would have to cover the absence. Further, due to the minimum shift requirements already contained in the Pharmacy Industry Award 2010, an employee would have to be rostered on for an additional three hours, using an example of an employee taking blood donor leave for two hours. This represented an estimated cost to community pharmacy employers of approximately $18 million per year.

ABI/NSWBC submissions

[53] ABI and the NSWBC opposed the SDA’s application. 27 They submitted that the claim was not necessary to achieve the modern awards objective, and said:

“... [t]here are a great number of possible charitable causes for which new forms of leave could be proposed, including fundraising, campaigning, organ donation, or other broad volunteering actions… [t]here does not appear to be any determinative basis for the Commission to elevate one form of charitable action over another, and it would not be difficult to identify a floodgates situation in the event BDL is granted in five awards.” 28

[54] They further submitted that the evidence adduced by the SDA was not “wide-ranging or quantitative”, did not accurately reflect the range of employees who were covered by the Awards, and did not support deviating from the “status quo”, as the starting point was that modern awards, at the time of their creation, satisfied the modern awards objective.

[55] ABI and NSWBC rejected the SDA contention that the average person did not have the opportunity to donate blood outside of working hours, and submitted that the SDA’s proposed provision would place an unnecessary burden on employers and seemingly did not permit employers to refuse a request from an employee to access blood donor leave, which would be inherently unfair.

Business SA’s submissions

[56] Business SA also opposed the SDA’s application on the basis that the SDA’s submissions had failed to demonstrate a merit argument that the insertion of a blood donor leave entitlement was necessary to meet the modern awards objective, nor had the SDA adduced probative evidence demonstrating facts supporting the variation. 29 The SDA’s ten witnesses who had blood donor leave entitlements under enterprise agreements demonstrated that the appropriate mechanism for the provision of paid blood donor leave would be through enterprise bargaining. Business SA otherwise repeated submissions advanced by the other employer organisations.

NRA submissions

[57] The National Retail Association, which represents 19,000 shop fronts in the retail, fast food, hairdressing and beauty and hardware industries, also made submissions opposing the SDA’s proposed variations to the Awards. 30 Like the other groups, it made submissions in support of the proposition that blood donor leave was not necessary to meet the modern awards objective. It also submitted, more adventurously, that blood donor leave could not be included in modern awards because of s.153(1) of the FW Act, which provided that a modern award must not include “terms that discriminate against an employee because of, or for reasons including, the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin”. The SDA’s application, if granted, would create a leave entitlement access to which was restricted only to employees who are eligible to donate blood. The NRA argued that, based on “sound risk management principles”, the following classes of individuals are prohibited from accessing blood donor leave: employees under the age of 16 or over the age of 70 (age discrimination); employees with a serious health condition or who are low in iron (disability discrimination); employees born in the United Kingdom between 1 January 1980 and 31 December 1996 and who lived there for a cumulative period of six months in that period (national extraction discrimination); male employees who are not heterosexual and are sexually active, or females who are sexually involved with males who may have engaged in homosexual acts (sexual orientation discrimination); and female employees who are or have recently been pregnant (pregnancy discrimination). A term about blood donor leave would therefore be discriminatory and was prohibited by s.153(1).

Consideration

[58] The evidence before us demonstrates that the donation of blood is a socially beneficial activity, and that the provision to employees of blood donor leave facilitates blood donations. We further accept that the grant of the SDA’s claim would have the likely result of increasing the total amount of blood donated, which would be an undoubted community health benefit. To the extent that the SDA, in advancing its case in this matter, seeks to achieve that outcome, it may be characterised as acting in the public interest.

[59] However the Commission does not have a general discretion to include in modern awards provisions which it considers would be of public benefit or are socially desirable. Section 138 limits the terms that may be included in a modern award as follows:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[60] There is no doubt that blood donor leave is a term which is permitted to be included in a modern award, since s.139(1)(h) permits a modern award to include terms about “leave, leave loadings and arrangements for taking leave”. The critical question is whether the inclusion of a term about blood donor leave is necessary for the modern awards objective to be met in the case of the awards the subject of these proceedings. Section 134(1) sets out the modern awards objective as follows:

134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2 6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

[61] In National Retail Association v Fair Work Commission 31 the Federal Court Full Court said the following about s 134(1):

“[109] It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim.

[110] The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA’s contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected.”

[62] Where a claim is made for the variation of a modern award in the context of a 4 yearly review conducted pursuant to s.156, the task of the Commission in seeking to ensure that the modern awards objective is met was described by the Federal Court Full Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd 32 as follows:

“[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.”

[63] Later in the above decision the Full Court said “...the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective”. 33

[64] We are not satisfied that the inclusion of the SDA’s proposed blood donor leave clause is necessary for the Awards to meet the modern awards objective. Blood donation is, except in respect of therapeutic blood donors, a voluntary activity. It is entirely a matter for the individual employee whether, when, and how often, they donate blood. In that sense, blood donation is essentially no different from other forms of beneficial charitable or community activity. Although in many cases blood donation will be made easier if blood donor leave is provided because blood donor facilities are often located close to places of employment and because of time constraints outside of working hours, the evidence before us nonetheless demonstrated that it remains possible and practicable for employees to donate blood outside of working hours or during leave, albeit that it might involve greater time and inconvenience. That is to say, blood donor leave is not a necessary precondition for blood donation to take place.

[65] Although blood donor leave undoubtedly is a matter which pertains to the employment relationship, the evidence before us does not satisfy us that it is something that needs to be part of a fair and relevant safety net of terms and conditions. It is a matter which is of little if any conceivable relevance to the level of employees’ remuneration, or their working hours, conditions while at work or job security. In relation to the matters required to be taken into account in s.134(1), we do not consider the blood donor leave would assist in meeting any of the objectives or needs in paragraphs (a)-(da). Paragraphs (e) and (g) are neutral factors. In respect of paragraphs (f) and (h), blood donor leave would necessarily impose at least some level of cost on employers, and the short term absences caused by employees taking blood donor leave might negatively impact on business efficiency and productivity, particularly in respect of small businesses which cannot readily interchange employees. None of the matters in s.134(1) supports blood donor leave being a necessary part of the minimum safety net.

Conclusion

[66] The FW Act does not permit the inclusion of the SDA’s proposed provisions in the Awards because the inclusion of blood donor leave provisions is not necessary in order for the Awards to achieve the modern awards objective. Accordingly the SDA’s claims must be dismissed.

VICE PRESIDENT

Appearances:

Mr M Moretta and Mr J Ryan on behalf of the Shop, Distributive and Allied Employees Association.

Ms R Bhatt and Mr B Ferguson on behalf of the Australian Industry Group and the Hair and Beauty Australia Industry Association.

Mr M Roucek on behalf of the Australian Business Industrial and New South Wales Business Chamber.

Ms S Wellard on behalf of the Pharmacy Guild of Australia.

Ms B Imbriano on behalf of the Master Grocers Association.

Mr A Millman on behalf of the National Retailers Association.

Hearing details:

2017.
Sydney;
17 and 18 July.

 1   Letter dated 5 April 2017.

 2   Transcript 17 July 2017 PN 246

 3   Transcript 17 July 2017 PN 265

 4   Transcript 17 July 2017 PNs 301-304

 5   Transcript 17 July 2017 PNs 180-195

 6   Transcript 17 July 2017 PNs 468-471

 7   Transcript 17 July 2017 PNs 487-490

 8   Transcript 17 July 2017 PNs 350-368

 9   Transcript 17 July 2017 PNs 400-403

 10   Transcript 17 July 2017 PNs 568-569

 11   Transcript 17 July 2017 PNs 635-639

 12   Submissions of the SDA on 3 October 2016, 2 May 2017 and submissions in reply on 10 July 2017.

 13   Submissions of the SDA dated 2 May 2017 at [11].

 14   Submissions of the SDA dated 2 May 2017 at [39].

 15   Submissions of the SDA dated 2 May 2017 at [53] – [54].

 16   Submissions of the SDA dated 2 May 2017 at [60].

 17   Submissions of the SDA dated 2 May 2017 at [80].

 18   Submissions of the Australian Red Cross dated 15 May 2017 at pages 1 – 2.

 19   Submissions of the Victorian Government dated 6 June 2017.

 20   Submissions of the South Australian Government dated 13 July 2017.

 21   Submissions of Ai Group dated 30 June 2017.

 22   Submissions of Ai Group dated 30 June 2017 [25].

 23   Submissions of the MGA dated 30 June 2017.

 24   Letter of the MGA dated 12 January 2017.

 25   Submissions of the MGA dated 30 June 2017 at [9]

 26   Submissions of the Guild dated 30 June 2017.

 27   Submissions of ABI and the NSWBC dated 30 June 2017.

 28   Submissions of ABI and the NSWBC dated 30 June 2017 [2.8] – [2.9].

 29   Submissions of Business SA dated 30 June 2017.

 30   Submissions of the NRA dated 30 June 2017.

 31   [2014] FCAFC 118; 225 FCR 154; 244 IR 461

 32   [2017] FCAFC 123

 33   Ibid at [46]

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