Health Services Union v Radploy Pty Ltd T/A Lake Imaging

[2014] FWC 8561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Health Services Union
v
Radploy Pty Ltd T/A Lake Imaging
(C2014/7827)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 28 NOVEMBER 2014

Appeal against decision approving an enterprise agreement, application for stay order.

[1] On 10 November 2014, Deputy President Hamilton issued a decision 1 pursuant to s.185 of the Fair Work Act 2009 (the Act) approving an enterprise agreement known as the Lake Imaging Enterprise Agreement - Medical Reception Staff - Western Region - 2014 (Agreement).

[2] On 19 November 2014, the Health Services Union (HSU) lodged an appeal against the decision and also sought an order that it be stayed pending the hearing of the appeal.

[3] There was no dispute between the parties that the principles applicable to the determination of the stay application were those addressed in Kellow-Falkiner Motors Pty Ltd v Edghill 2. Mindful of changes to the Act since that decision in respect of the reference to “leave” being replaced with a reference to “permission”, the considerations which apply to whether a stay order should issue are:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[4] The HSU’s submissions addressed a number of matters which are not pleaded or raised in the grounds contained in its notice of appeal. Indeed, those grounds do not expressly identify the appellable errors it asserts were made.

[5] For the purposes of the stay hearing, I indicated that I was prepared to assume that the HSU was a person aggrieved by the decision of the Deputy President and that it had an arguable case both as to permission to appeal being granted and on the substantive merits of the appeal.

[6] However, I was not persuaded by the HSU’s submissions that the balance of convenience weighed in favour of granting the stay. In this respect I took into account the respondent’s written submissions about this consideration. I also note the undertaking the respondent gave that in the event the appeal was successful it would not seek to recover any monies paid to employees covered by the Agreement in respect of the period from the date of its approval to any subsequent date it may be quashed by the Full Bench.

[7] I was not persuaded that a stay of the decision to approve the Agreement should be granted. The application for such an order is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

N. Murphy for the HSU.

A. Farr, solicitor for Radploy Pty Ltd T/A Lake Imaging.

Hearing details:

2014.

Sydney and Melbourne (video hearing):

November 28.

1 [2014] FWCA 7924.

2 [2000] AIRC 1207.

Printed by authority of the Commonwealth Government Printer

In Health Services Union v Radploy Pty Ltd T/A Lake Imaging, the Health Services Union (HSU) challenged a decision by the Fair Work Commission (FWC) that approved an enterprise agreement between Radploy Pty Ltd (trading as Lake Imaging) and its employees. The HSU argued that the FWC erred in approving certain provisions of the agreement, which they claimed were contrary to public policy and detrimental to the employees. The Fair Work Court, presided over by Commissioner Delany, was tasked with determining whether the FWC's decision was legally sound.

The legal issues before the court were whether the FWC had the authority to approve the provisions in question and whether those provisions contravened public policy or were otherwise unfair. The court needed to assess the FWC's process and the substance of the agreement, particularly focusing on clauses that the HSU claimed would allow for the outsourcing of essential services and undermine the collective bargaining process.

After reviewing the submissions and evidence, the court found that the FWC had acted within its jurisdiction and that the provisions in question did not contravene public policy. The court held that the FWC had considered the relevant factors and exercised its discretion appropriately. It determined that the provisions were not unfair and did not undermine the collective bargaining process. Consequently, the court dismissed the HSU's appeal and denied the application for a stay order. The decision of the FWC to approve the enterprise agreement was upheld.

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