Dementia Australia Limited
[2022] FWCA 678
•25 FEBRUARY 2022
| [2022] FWCA 678 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Dementia Australia Limited
(AG2021/8996)
Dementia Australia Enterprise Agreement 2021
| Aged care industry | |
| COMMISSIONER SIMPSON | BRISBANE, 25 FEBRUARY 2022 |
Application for approval of the Dementia Australia Enterprise Agreement 2021
An application has been made for approval of an enterprise agreement known as the Dementia Australia 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 Dementia Australia Limited (the Applicant). The Agreement is a single enterprise agreement.
The Health Services Union Victoria No. 3 Branch, trading as the Victorian Allied Health Professionals Association (VAHPA) and the Health and Community Services Union (HACSU) (collectively, the Unions) were both named as bargaining representatives in the Form F16.
The matter was allocated to me on 6 January 2022, and shortly after, my chambers sent correspondence outlining certain concerns that were identified within the Agreement. The Applicant provided a response to these concerns on 19 January 2022.
Issues
VAHPA raised various concerns with the Agreement in both the Form F18 and in response to the Applicant’s response to concerns received on 19 January 2022.
I listed the matter for Hearing on 22 February 2022, to discuss outstanding issues with the Agreement. At the Hearing, VAHPA confirmed there were only two outstanding issues, being the entitlement to pay point progression and the amended Form F16 submitted on 19 January 2022. The Applicant consented to providing an additional undertaking regarding the entitlement to pay point progression, which was accepted by the Unions. Accordingly, the only outstanding issue was the Form F16.
VAHPA contended that the 19 January 2022 Form F16 was relevantly significantly different to the original F16 lodged with Commission and served on bargaining representatives on 15 December 2021. The original F16 stated that Mr Ross Clarke (Mr Clarke) was a bargaining representative appointed by Dementia Australia, and VAHPA submitted that Dementia Australia has not provided the Commission with an instrument of appointment in relation to Mr Clarke. VAHPA submitted that the alteration of who made the F16 application inter alia is significant change that is not capable of amendment pursuant to s.586(a) of the Act.
The Applicant submitted that the Commission should find that:
· Mr Clarke was appointed by Dementia Australia as its bargaining representative, with effect from 9 February 2021;
· The F16 lodged by Mr Clarke on 15 December 2021 was in his role as Dementia Australia’s bargaining representative;
· That the application was therefore made in accordance with the requirements in section 185(1) of the Act; and the timeframe required under section 185(3)(a) of the Act.
In the alternative, Dementia Australia submits that the revised Form F16 that was provided to the Commission on 19 January 2022 is also appropriate for the Commission to consider and approve.
The Applicant submitted that the Commission has discretion under s.586(a) of the Act to allow a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate. The Applicant submitted that the circumstances in which the revised Form F16 were provided are exactly the type whereby the Commission can exercise the significant discretion provided under s.586(a) to allow a correction of the Form F16.
VAHPA submitted that the Commission may be able to consider the F16 lodged on 19 January 2022 as a new application. However, this would mean that the application would be 30 days out of the time frame prescribed by s.185(3)(a) of the Act. VAHPA submitted that the Applicant has provided no reasoning why the Commission should consider it fair to extend the 14 day timeframe pursuant to s.185 (3)(b) of the Act.
Consideration
It is apparent from the submissions that negotiations for the Agreement proceeded on the basis that all parties assumed that Mr Clarke had been appointed as a bargaining representative for the employer. It is also apparent that the employer itself, who is a bargaining representative for the Agreement, participated alongside Mr Clarke during negotiations through the involvement of Ms Anneliese Coghlan, the Executive Director of People and Culture for the Applicant.
The issue of the status of Mr Clarke only first arose after the Agreement had been made, and application for approval was filed with the Commission. In correspondence to the Applicant on 14 January 2022, the Commission raised various issued including a query that the Form F16 filed by Applicant was signed by Mr Clarke in the capacity of a bargaining representative, however no instrument of appointment as such had been filed with the application. The Commission requested a revisited Form F16 be filed.
Three days later on 19 January 2022 the Applicant filed proposed undertakings addressing a number of concerns raised by the Commission and also filed an amended Form F16 such that it was now signed by Ms Coghlan on behalf of the Applicant and not Mr Clarke.
At a hearing before the Commission on 22 February, Mr Fooks on behalf of VAHPA maintained its objection that the Agreement could not be approved and must be dismissed on the basis that Mr Clarke was at no time a bargaining representative during negotiations, and it would not be appropriate to allow an amendment to the application filed on 15 December 2021 by exercising power under s.586(a) to allow a correction or amendment to the Form F16 application.
The Applicant submitted that Mr Clarke was correctly appointed as its bargaining representative, however helpfully conceded that no instrument of appointment was provided until 17 February 2022, and I understood the Applicant to concede a written instrument of appointment was not created until 17 February 2022.
The Applicant filed with its submissions of 18 February a letter signed on 17 February 2022 by Ms Coghlan purporting to be an instrument appointing Mr Clarke as a bargaining representative for the Applicant, and purporting that the appointment had been effective from 9 February 2021.
I do not accept the Applicant’s primary submission that the legislation is intended operate in a manner that would allow for a written appointment by an employer of a bargaining representative after a point at which bargaining had concluded and an agreement had been made.
In effect the Applicant submits Mr Clarke had been appointed as a bargaining representative for the purposes of s.176(1)(d) with effect from 9 February 2021 because the employer had made a decision to appoint Mr Clarke and advised him of that on 9 February 2021. I have no doubt the Applicant and Mr Clarke both believed an appointment had been made at this time, however the legislation is clear and unambiguous. In the absence of an appointment being made in writing, Mr Clarke is not a bargaining representative for the purposes of the Act.
However, I agree with the Applicant’s submission in the alternative that it is open for the Commission to exercise its power under s.586(a) to allow the application filed on 15 December 2021, to be amended such that the signatory to the application is Ms Coghlan, in order that the application before the Commission is an application made by a bargaining representative, which the employer was at all times during bargaining.
VAHPA submits that such an amendment goes beyond the nature of amendment that would be appropriate. It is notable that Ms Coghlan signed both the Agreement that was filed with the original Form F16, and also signed the Form F17 Employer Declaration in support of the application. The facts indicate the failure to complete a written instrument appointing Mr Clarke was an oversight, and I have no doubt that both the employer and Mr Clarke were acting in good faith in the belief that he was an appointed bargaining representative when he signed the Form F16 application. This would seem to a matter falling within the power of the Commission under s.586(a) to correct or amend, rather than dismiss an application as submitted by VAHPA.
VAHPA made a separate submission that the fact of the parties proceeding on an understanding about the status of Mr Clarke throughout bargaining raised an issue about whether the Agreement itself was genuine. This submission appears to proceed on the basis that the Applicant did not bargain in good faith, and that the Agreement may have been different had Mr Clarke not been involved in negotiations. Matters in relation to whether parties are bargaining in good faith are intended to be dealt with in the course of bargaining and not as part of the approval process.
In any event, it appears both Mr Clarke and Ms Coghlan participated in the bargaining so at all times a bargaining representative was present on behalf of the employer and whether Mr Clarke was participating as an appointed bargaining representative, or as a consultant advising the employer, (which now appears to be an accurate description of what occurred), I cannot see any basis that this issue could give rise to a concern that the Agreement was not genuinely agreed in accordance with any of the matters arising under s.188 of the Act.
VAHPA in its submissions also stated that while it may be open for the Commission to consider the amended Form F16 filed on 19 January and signed by Ms Coghlan as a new application, VAHPA opposed the approval of the Agreement pursuant to the amended Form 16 application being regarded as a new application on the basis that it was filed outside the 14 days after the Agreement was made.
Whilst I have concluded that I have power to amend the application as sought by the Applicant and have decided to grant the amendment, such that the signatory for the application is Ms Coghlan, for completeness, I would add that had I concluded I did not have power to amend the Form F16, I would have been prepared to extend time for the filing of the Form F16 filed on 19 January 2022. There are cogent reasons that would justify allowing an extension of the 14 days, as the Commission has power to do in accordance with s.185(3)(b) given I accept there has been a genuine misunderstanding about the standing of Mr Clarke to sign original Form F16 for reasons set out in detail above.
Conclusion
The Applicant has provided written undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Noting clause 1.1(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The VAHPA and the HACSU both lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the VAHPA and the HACSU.
The Agreement is approved and will operate in accordance with s.54 of the Act.
COMMISSIONER
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