Hunter Imaging Group Pty Ltd T/A Hunter Imaging Group

[2024] FWCA 3079

[2024] FWCA 3079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hunter Imaging Group Pty Ltd T/A Hunter Imaging Group

(AG2024/2837)

HUNTER IMAGING GROUP ENTERPRISE AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 22 AUGUST 2024

Application for approval of the Hunter Imaging Group Enterprise Agreement 2024

Introduction

1. Hunter Imaging Group Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hunter Imaging Group Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 3 August 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as amended on 6 June 2023, apply to the present application. Further, as the Agreement was made on 12 July 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Notification of time, place and method of vote

1. The Form F17B indicates that the notification of time, place and method of vote occurred on 2 July 2024, and that the voting for the Agreement commenced on 8 July 2024. This was only 6 clear days prior to the commencement of voting, rather than 7 clear days as required by s.180(3) of the Act.

1. The Commission wrote to the parties seeking clarification on this matter and other matters arising in the consideration of the Agreement. On 21 August 2024, the Employer and the Health Services Union (HSU) both provided submissions to the effect that the initial notification of time, place, and method of vote had occurred on 26 June 2024 and that the notification on 2 July 2024 pushed the date of the vote back to 8 July 2024. The purpose of the agreed delay to the commencement of the vote was to address concerns raised by the HSU that some employees had yet to receive their individual pay rates under the proposed Agreement, and following receipt would require 7 clear days before the commencement of the vote. The HSU provided confirmation to both the Employer and subsequently to the Commission that the measures taken to delay the vote addressed their concerns.

1. Having had regard to those submissions, as required by s.188(1) of the Act and [16] of the Statement of Principles on Genuine Agreement, I am satisfied that the employees were informed of the time, place and method for the vote by a reasonable time before the day on which voting started as agreed with the HSU as bargaining representative for a significant proportion of the employees to be covered by the Agreement.

Delegates’ rights term

1. Pursuant to s.205A of the Act, the delegates’ rights term prescribed by the Health Professionals and Support Services Award 2020 is taken to be a term of the Agreement

National Employment Standards (NES) precedence term

1. Clause 33.6 of the Agreement provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 33.6 does not appear to limit the source of monies from which any withholding may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). Accordingly, Clause 33.6 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 32 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss. 117–123 of the Act.[1] Additionally, the clause provides for termination to operate from the date of last attendance or consent absence, which appears to be inconsistent with s.117 of the Act.

1. Clause 34.4 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. As this provision is not subject to an application pursuant to s 120 of the Act, it may not be consistent with s.119 of the Act.

1. Clause 4.2 appears to provide for casual conversion. However, the provisions do not appear to be consistent with s.66B of the Act.

1. I note that in accordance with the NES precedence term in Clause 2.8 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The 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.

1. In accordance with s.201(2), I note that the Agreement covers the HSU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2024. The nominal expiry date of the Agreement is 22 August 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58].

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