Healthe Care Surgical Pty Ltd T/A Healthe Care
[2023] FWC 183
•20 JANUARY 2023
| [2023] FWC 183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Healthe Care Surgical Pty Ltd T/A Healthe Care
(AG2022/5298)
| COMMISSIONER PLATT | ADELAIDE, 20 JANUARY 2023 |
Application for approval of the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2022 – Notice of Employee Representational Rights not in the form required by s.174(1A) of the Act – Employer covered by the Agreement did not take all reasonable steps to issue Notice of Employee Representational Right as required by s.173(1) of the Act - whether minor procedural or technical error – application dismissed.
An application has been made for approval of an enterprise agreement known as the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2022 (the proposed agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Healthe Care Surgical Pty Ltd T/A Healthe Care (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 23 December 2022.
On 5 January 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the proposed agreement and invited the Applicant to address these matters including through the provision of an undertaking and submissions.
The first concern raised at the conference was that the Notice of Employee Representational Rights (NERR) distributed to the employees was not in the form required by s.174(1A) of the Act. This was as a result of the fact that the identity of the employer contained in the NERR was different to that detailed in the Agreement. This issue was also raised by the Health Services’ Union (HSU) in their F18. In addition, it is noted that the title of the agreement contained in the NERR is different to the title of the agreement as outlined in clause 2 of the proposed agreement.
The issue of the name of the employer also raised the question of compliance with s.173(1) of the Act. Section 173(1) requires that the employer covered by the agreement is required to take all reasonable steps to give the NERR to each employee who will be covered by the Agreement.
The NERR was distributed on the 28 April 2022 and identified the employer as “Healthe Care Surgical Pty Ltd” and the title of the proposed agreement as “Health Care Surgical Pty Ltd Victorian Private Hospitals – Health Professionals Enterprise Agreement 2022”. The NERR was attached to an email sent to employees by Ms Alina Oleksy on 28 April 2022. The email refers to the entity “Healthe Care” but does not provide any further information as to the proposed employer.
The title of the proposed agreement distributed to employees prior to the ballot, detailed at clause 2, was “Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2022”. The name of the employer, detailed at clause 3, was “Healthe Care Valley Pty Ltd ABN 94 117 484 698”.
The explanatory material provided to employees states “The coverage has been updated to refer to the employing entity as Healthe Care Valley Pty Ltd.” No further information as to the reason for the update appears to have been provided.
The Form F16 and F17 filed by Mr George Diakos (Head of Human Resources) on 15 December 2022 describes the name of the Applicant as “Healthe Care Surgical Pty Ltd ABN 84 636 289 686”.
Two issues are raised by this information. The first is whether, as a result of the discrepancies in the entity name and the title of the agreement in the NERR, the Applicant has been compliant with s.173(1) and/or s.174(1A) of the Act. If the NERR is not compliant with s.173(1) and/or 174(1A), the second issue is whether the enterprise agreement has been genuinely agreed to despite the non-compliance with s.173(1) and/or 174(1A), as a result of the error being one which is minor and procedural or technical in nature as per s.188(2) of the Act.
The parties were invited to respond to the issues.
On 11 January 2023, the Applicant provided written submissions. On 13 January 2023, the HSU provided written submissions in support of the Applicant’s position.
In its submissions, the Applicant acknowledged that the NERR:
·did not include the correct legal name of the employing entity (entity error); and
·did not include the correct title of the Agreement (title error).
The Applicant submitted that the Commission should be satisfied that both these matters constituted minor procedural or technical errors within the scope of s.188(2) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
In relation to the title error, the Applicant submitted that the NERR commonly does not record the exact name of the agreement that is ultimately made. In relation to the entity error, the Applicant submits that there is nothing in the text of s.188(2) that indicates that the Commission cannot waive an issue of non-compliance that pertains to the legal name of the employing entity, or that it is incapable of being classified as a ‘minor’ technical error. It submits that there are a number of examples where the Commission has been satisfied that such an error has been accepted as being within the scope of s.188(2).
The Applicant submitted that in evaluating the errors, I should take into account a variety of information, which is summarised below:
· The recipients of the NERR are degree qualified health professionals.
· The proposed agreement is not the first agreement covering the employees.
· The difference between the correct and incorrect employing entity name is very minor and there are no other business interests of the Applicant in Victoria, therefore no capacity for confusion as to whether the NERR covered the employees.
· On 28 April 2022, an email attaching the NERR was sent to employees which contained the following statement:
“Please see attached notification of intention of bargaining for the Health Professionals Enterprise Agreement.”
· The Applicant contended that the above statement made it clear that the NERR pertained to the recipient’s employment.
The Applicant submitted that, taking into account the above points, the Commission should be satisfied that it is not probable that the employees covered by the proposed agreement were disadvantaged by the errors.
Consideration
I will deal first with the entity error. I have not been provided with any information as to the relationship (if any) between the two entities referred to, including any differences in ownership and/or financial position.
I note the reference to the 2019 Agreement in the information provided to employees and in the Applicant’s submission. A review of the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2019[1] reveals that the employer in that agreement is “Healthe Care Australia Pty Ltd ABN 93 117 285 300”. This entity appears to be a different legal entity to either “Healthe Care Valley Pty Ltd” or “Healthe Care Surgical Pty Ltd”. No information has been provided about any connection between the employer in the 2019 Agreement and the employer in the proposed agreement.
As a result of the lack of information provided to the employees on the proposal to change the employer named in the proposed agreement, it is likely that genuine agreement as required by s.188(1) of the Act is absent. I am not satisfied, based on the information that I have been given, that the employer covered by the proposed agreement (Healthe Care Valley Pty Ltd) took all reasonable steps to issue the NERR to each employee covered by the proposed agreement as required by s.173(1) of the Act. The NERR was issued on behalf of Healthe Care Surgical Pty Ltd, a separate entity.
If I am wrong about this, I am equally not satisfied that the content contained in the NERR is in the form required by the regulations as per s.174(1A) of the Act. The name of the employer in the NERR is not the name of the employer covered by the proposed agreement.
I reject the submission that the differences are minor. The two entities are completely separate legal entitles. It is theoretically possible the new entity (Heathe Care Valley Pty Ltd) may not be in the same financial position as the employer named in the NERR (Healthe Care Surgical Pty Ltd). No detail of the information (if any) that was provided to employees about the change has been given. No reasoning behind why the Applicant (on the F16 and F17) is not the employer proposed to be covered by the proposed agreement was provided.
The email which accompanied the NERR does not provide any information on the issue.
The fact that all of the employees are tertiary educated does not appear to be relevant to the question of whether the error was a minor procedural or technical error.
The Applicant was invited to change the name of the employer in the proposed agreement to that contained in the NERR but declined to do so.
Conclusion
On the basis of the findings above, in my view the NERR distributed by the Applicant does not meet the requirements of s.173 and/or s.174(1A) of the Act. On this basis, it is likely that the proposed agreement was not genuinely agreed within the meaning of s.188(1) of the Act.
In respect of the application made under s.188(2) of the Act, I am not satisfied that the error(s) made by the Applicant in respect of s.173(1) and/or 174(1A) of the Act were minor procedural or technical errors. Accordingly, it is not open for me to find that the proposed agreement was genuinely agreed by the employees despite the non-compliance.
As a result of this conclusion, I have not considered the remaining issues with the proposed agreement.
The application for approval of the proposed agreement is therefore dismissed.
COMMISSIONER
[1] AE506524.
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