Benairn Pty Ltd ATF Benairn Unit Trust T/A Benson Radiology Summary

[2022] FWCA 169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Benairn Pty Ltd ATF Benairn Unit Trust T/A Benson Radiology

(AG2021/8920)

Benson Radiology Enterprise Agreement 2021

Health and welfare services
DEPUTY PRESIDENT DEAN	CANBERRA, 21 JANUARY 2022

Application for approval of the Benson Radiology Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Benson Radiology Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Benairn Pty Ltd ATF Benairn Unit Trust T/A Benson Radiology (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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.

The Health Services Union, 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2022. The nominal expiry date of the Agreement is 28 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Benairn Pty Ltd ATF Benairn Unit Trust T/A Benson Radiology, the Fair Work Commission was called upon to approve an enterprise agreement proposed by the employer. The dispute involved the terms and conditions of employment for the employees of Benson Radiology, a medical imaging and radiation therapy services provider. The application for approval of the Benson Radiology Enterprise Agreement 2021 was brought forth by the employer, seeking to have the agreement recognised and enforced under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed enterprise agreement met the criteria for approval as outlined in the Fair Work Act. Specifically, the Commission had to determine whether the agreement provided for the direct communication of terms and conditions, whether it was free from any unlawful content, and whether it met the requirements for majority support from the employees covered by the agreement. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage any employee or group of employees and that it complied with the provisions of the National Employment Standards and the National Workplace Relations Framework.

In delivering its decision, the Commission considered the evidence and submissions presented by both parties. The Commission found that the agreement provided for direct communication of terms and conditions of employment, was free from any unlawful content, and had the support of a majority of the employees. The Commission also determined that the agreement did not unfairly disadvantage any employee or group of employees and was consistent with the National Employment Standards and the National Workplace Relations Framework. Based on these findings, the Commission approved the Benson Radiology Enterprise Agreement 2021.

The final orders of the Commission included the approval of the Benson Radiology Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the terms and conditions of employment for the employees of Benson Radiology. The decision also included provisions for the review and amendment of the agreement in accordance with the Fair Work Act.

Benairn Pty Ltd ATF Benairn Unit Trust T/A Benson Radiology

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established