Epworth Medical Imaging Pty Ltd T/A Epworth Medical Imaging

[2024] FWCA 2421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Epworth Medical Imaging Pty Ltd T/A Epworth Medical Imaging

(AG2024/2104)

EPWORTH MEDICAL IMAGING SUPPORT SERVICES ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 28 JUNE 2024

Application for approval of the Epworth Medical Imaging Support Services Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Epworth Medical Imaging Support Services Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Epworth Medical Imaging Pty Ltd T/A Epworth Medical Imaging. 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Health Services Union (HSU) 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 HSU support approval of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 16.6 – Casual Employment; and

· Clause 43.1 – Public Holidays.

However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 July 2024. The nominal expiry date of the Agreement is 28 June 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves an application by Epworth Medical Imaging Pty Ltd, trading as Epworth Medical Imaging, to the Fair Work Commission for the approval of the Epworth Medical Imaging Support Services Enterprise Agreement 2024. The application arose in the context of negotiations between the employer and the employees, represented by the Health Services Union of Australia (HSU), regarding the terms and conditions of employment for support services staff at Epworth Medical Imaging.

The central legal issues before the Commission were whether the proposed agreement was in compliance with the requirements of the Fair Work Act 2009, particularly with respect to the procedural fairness in its negotiation and whether the agreement met the "better off overall test." The Commission also needed to consider if the agreement contained all the mandated terms and conditions, and whether any provisions were contrary to public policy or had been unfairly disregarded.

The Fair Work Commission carefully reviewed the negotiation process and the content of the proposed agreement. It was determined that the agreement had been negotiated in good faith and that the process was procedurally fair. The Commission also found that the agreement met the "better off overall test," meaning that on balance, the employees would be better off with the new agreement than under their previous conditions. The agreement was found to include all the required terms and conditions, and none of the provisions were deemed contrary to public policy or unfairly disregarded. Based on these findings, the Commission approved the Epworth Medical Imaging Support Services Enterprise Agreement 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established