Alvan Pty Ltd T/A The Park Private Hospital

[2021] FWCA 6535

[2021] FWCA 6535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alvan Pty Ltd T/A The Park Private Hospital
(AG2021/7906)

THE PARK PRIVATE HOSPITAL REGISTERED AND ENROLLED NURSES ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 NOVEMBER 2021

Application for approval of the The Park Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2021

[1] Alvan Pty Ltd T/A the Park Private Hospital (the Applicant) has made an application for the approval of an enterprise agreement known as the Park Private Hospital Registered and Enrolled Nurses Enterprise Agreement 2021 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] Within the cohort of employees who voted on the Agreement were several nurses who were employed on a casual basis. It was initially unclear whether all casual employees who cast a vote were employed at ‘the time’. 1 It is accepted that an employer should only make a request under s 181(1) to employees who are employed ‘at the time’, as opposed to those who are not employed at ‘the time’ but who might otherwise be regarded as ‘usually employed’.2

[3] The Applicant, having been directed to file additional evidence, provided a list of the casual employees who voted on the Agreement and a list of the casual employees who were employed at ‘the time’, namely the whole of the access period. Having reviewed the evidence it was apparent that a couple of employees were ineligible to vote.

[4] This issue about the validity of the vote was considered in Endeavour Petroleum Pty Ltd (Endeavour Petroleum). 3 While that decision considered s 170LK of the Workplace Relations Act 1996 (Cth) it is, in my view, relevant to the circumstances of this case. In Endeavour Petroleum, the ordinary meaning of the words used in the term ‘valid vote’ were considered and the following expressed:

Applying the ordinary meaning of the term “valid vote”, means, in my view, that a vote cast by a person ineligible to vote cannot be a valid vote, where “valid” is defined by the New Shorter Oxford Dictionary to mean “possessing legal authority; executed with the proper formalities; legally acceptable or binding” and the Macquarie Dictionary to mean “legally sound, effective or binding; having legal force; sustainable in law”. Complying with both the eligibility condition to vote and the appointed balloting procedure is implicit in the notion of casting a valid vote. 4

[5] The inclusion of invalid votes in Endeavour Petroleum, or the mere potential involvement of employees casting an invalid vote, was found not to have tainted the ballot itself. There had been 39 votes cast. The majority in favour of making the agreement was 24 to 15. It was observed that the greatest effect that the erroneous inclusion of invalid votes had was to reduce the majority from 9 to 1 and therefore the result of the vote could not be doubted. Participation of employees ineligible to vote, on the evidence before the Commission, could not have affected the conduct of the ballot and, on the numbers, could not have affected the outcome. Referring to the words of the Full Bench in ‘Magnet Mart’, it was concluded ‘the emergence of a valid majority in favour of the agreement retains the efficacy of the ballot’. 5

[6] Not unlike the situation in Endeavour Petroleum, there were several casual employees who cast invalid votes. However the Applicant has had the luxury of a sufficient buffer in the voting numbers, such that the invalid votes have not impacted upon there being a ‘valid’ majority.

[7] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[8] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[9] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[10] The Australian Nursing and Midwifery Federation WA Branch (the organisation),being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[11] The Agreement was approved on 5 November 2021 and, in accordance with s 54, will operate from 12 November 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513749  PR735470>

1   Shop, Distributive and Allied Employees Association and Kmart Australia Limited and Australian Workers’ Union [2019] FWCFB 7599.

 2   Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224, [18] citing National Tertiary Education Union v Swinburne University of Technology (2015) 232 FCR 246.

 3   PR957131.

 4   Endeavour Petroleum Pty Ltd, PR957131, [50].

 5   Magnet Mart Pty Limited, PR923848, 22 October 2002 per Duncan and Cartwright SDPP, Harrison C at [ 32.]

ANNEXURE A