I-Med Queensland Pty Ltd
[2023] FWCA 1575
•9 JUNE 2023
| [2023] FWCA 1575 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
I-Med Queensland Pty Ltd
(AG2023/1475)
I-MED QUEENSLAND NURSES ENTERPRISE AGREEMENT 2022
| Health and welfare services | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 9 JUNE 2023 |
Application for approval of the I-MED Queensland Nurses Enterprise Agreement 2022
I-Med Queensland Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the I-MED Queensland Nurses Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
There were a number of casuals who were included in the voting cohort. This raised the concern that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 182(1) and 188(1)(b)). The concern related to the eligibility of casual employees to vote on the proposed Agreement, because at least 12 casual employees who voted were not employed (that is, not engaged to work – casuals are generally not employed between engagements) during the access period for the Agreement.[1]
Out of the 55 employees notified of the vote, 13 employees were full-time employees, 23 were part-time employees and 19 were employed on a casual basis.[2] Seven of the casual employees attended for work during the access period from 20 April to 1 May 2023[3] and 12 of those casual employees did not have any working hours recorded during the access period.[4] There were 14 employees who voted to approve the Agreement out of 26 who cast a vote.[5]
It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.
The Applicant submitted that on one view of s 181(1) of the Act, the 12 casual employees who did not attend for work during the access period were not ‘employed’ during the access period.[6] The Applicant continued that whilst that point was not conceded, it was possible that it had cast too wide a net when making the request for ‘employees employed at the time’ to vote to approve the Agreement.[7]
However, the Applicant submits that this is not fatal to the application, in circumstances where the inclusion of the 12 casual employees who did not work during the access period ultimately had no bearing on the outcome of the vote. The Applicant explained that the valid majority of those who were definitely entitled to vote (being the remaining 43 of the voting cohort), and did actually vote, approved the Agreement. In this respect, the Applicant referred to its records that demonstrated:
a)from the 12 casual employees who did not attend for work during the Access Period, only one casual employee submitted a vote and this employee voted to not approve the proposed Agreement; and
b)removing this vote did not change the outcome that a majority of the voting cohort who cast a valid vote, voted to approve the proposed Agreement.
According to the Applicant, it followed that the Commission was able to be satisfied that the proposed Agreement was made for the purposes of s 182(1) of the Act without needing to determine whether the twelve casual employees who did not attend for work during the access period were entitled to vote.
In the decision of St John of God Health Care Inc (St John),[8] I traversed the authorities that have considered the phrase ‘employed’ at that time. I do not intend to repeat what was said in St John because based on the evidence submitted, I am satisfied that the Agreement was made in accordance with s 182(1).
Although it appears that that 12 of the voting casuals were not engaged to work during the access period and were not therefore employees ‘employed at the time who will be covered by the agreement’ (in this respect see ss 180(2) and 191(1) and Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd),[9] this did not affect the outcome of the vote.[10] This is so because only one of the 12 casuals is known to have voted ‘no’ and the remaining of the 12 casual employees did not cast a vote. Even if the one casual employee’s vote was removed from those who voted, the Agreement was still approved by a majority of employees who cast a valid vote.
On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
The Australian Nursing and Midwifery Federation (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 9 June 2023 and, in accordance with s 54, will operate from 16 June 2023. The nominal expiry date of the Agreement is 30 June 2025.
DEPUTY PRESIDENT
[1] See Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233, 245–7 [31]–[36] (Re SDA); Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd[2018] FWCFB 7224, [32]–[33] (Noorton).
[2] Applicant’s submissions in response to preliminary issues [10].
[3] Ibid [11].
[4] Witness Statement of Angelique Marie Francoise Vrisakis, [7].
[5] Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement), [26.2].
[6] Applicant’s submissions in response to preliminary issues [13].
[7] Ibid.
[8] [2023] FWCA 87.
[9] Noorton (n 1).
[10] Re SDA (n 1) 248 [43].
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