I-Med Regional Pty Limited

[2024] FWCA 1454

[2024] FWCA 1454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

I-Med Regional Pty Limited

(AG2024/877)

I-MED BORDER AND RIVERINA ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 19 APRIL 2024

Application for approval of the I-MED Border and Riverina Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the I-MED Border and Riverina Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by I-MED Regional Pty Limited (the Applicant). The employer entities proposed to be covered by the Agreement are the Applicant and I-MED Services Pty Ltd (I-MED Services). The Applicant provided a declaration by Mr. James Wood describing the relationship between the Applicant and I-MED Services. On the basis of the material provided, I am satisfied that the Applicant and I-MED Services are related employers within the meaning of s.172(2) and (5A) of the Act and the Agreement is a single enterprise agreement.

1. On 10 May 2023 a Notice of Employee Representational Rights (NERR) was issued to employees of the Applicant and I-MED Services who were to be covered by the proposed agreement and were employed at the notification time for the agreement. The NERR referred to the Applicant as the entity giving notice that it was bargaining for a proposed agreement. It did not refer to I-MED Services.

1. Mr. Wood’s declaration provided further information about the history of the Applicant and I-MED Services and about a restructure of the business’s operations that occurred in or around 2020. The declaration also explained that although NSW employees are now employed by I-MED Services and Victorian employees by the Applicant, as a matter of practice because of their geographical proximity and servicing of the same community, the Border Riverina group of employees employed by these two entities are seen as a single team within the I-MED group. Mr. Wood explained that when bargaining commenced for the proposed agreement all employees were notified and provided with a NERR and that throughout the bargaining process the employer entities communicated with the Border Riverina Team as one group, not just the Victorian employees. Mr. Wood said that the NSW employees were aware that the proposed agreement would apply to them. It was submitted that the omission of a reference to I-MED Services was an oversight.

1. Evidence was also received from an employee bargaining representative, Ms. Kerin, who is an employee of I-MED Services. Ms. Kerin said she was involved in all the bargaining meetings and involved in the bargaining process from the outset. She said she regularly reported to her NSW colleagues and updated them on the progress of bargaining. The Health Services Union NSW/ACT/QLD (HSU) was also a bargaining representative for the proposed agreement and lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. I also note that in order to correct the error, a second NERR was provided to I-MED Services employees on 8 February 2024 identifying I-MED Services as an employer to be covered by the proposed agreement.

1. In the circumstances I am satisfied that the omission of the reference to I-MED Services in the NERR was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by the error[1].

1. The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. The bargaining representatives have indicated their acceptance of the undertakings provided. 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

1. I note that Clause 6 of the Agreement provides that where the Agreement also has provisions regarding matters dealt with under the National Employment Standards (NES) and the provisions in the NES are more favourable to an employee in a particular respect than those provisions, then the NES will prevail in that respect and the provisions dealing with that matter in the Agreement will have no effect in respect of that employee.

1. As the HSU lodged a Form F18, I note in accordance with s.201(2) of the Act, that the Agreement covers the HSU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] Section 188(5).

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