I-MED Regional Pty Ltd - [2025] FWC 1477

[2025] FWC 1477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

I-MED Regional Pty Ltd

(AG2024/4534)

COMMISSIONER TRAN

MELBOURNE, 2 JUNE 2025

Application for approval of the I-MED Regional Victoria Enterprise Agreement 2023 - Cannot be satisfied that the Agreement was genuinely agreed to - Application dismissed

This is a decision further to my decision in Application by I-MED Regional Pty Ltd - [2025] FWC 1221 in relation to an application under s 185 of the Fair Work Act 2009 (Cth) for approval of the I-MED Regional Victoria Enterprise Agreement 2023. In that decision, I concluded:

[86] In summary, while I am of the view that I-MED did take reasonable steps to explain the Agreement, it failed to take all reasonable steps as it did not explain the terms and effect of the updated classification structure. I am of the view that those changes were not minor or trivial.

[87] Section 190(1) allows me to accept an undertaking with respect to the issue of whether employees have genuinely agreed to an agreement under s 186(2). Section 188(5)(aa) allows me to disregard minor procedural or technical errors where employees may not have been disadvantaged by the error. It is appropriate to provide I-MED with an opportunity to offer an undertaking or make submissions about the application of s 188(5) before finally determining this matter, and to provide bargaining representatives the opportunity to provide their views on any undertakings.

Submissions

I issued Directions for the parties to provide submissions or offer undertakings.

I-MED filed submissions and restated its earlier offered undertakings. I-MED submitted that the failure to take all reasonable steps to explain the terms and effect of the updated classification structure was a minor procedural or technical error and that employees were not likely to have been disadvantaged by the error such that I could disregard it under s 188(5). It did not offer any undertakings relevant to this issue but did restate its earlier offered undertakings which related to my concerns about whether the Agreement passed the better off overall test.

The Health Services Union of Australia Victoria No. 3 Branch trading as Victorian Allied Professionals Association (VAHPA) also filed submissions. VAHPA submitted that the failure above was not a minor procedural or technical error, that I could not be satisfied that employees were not likely to have been disadvantaged and so could not disregard the error under s 188(5). VAHPA also indicated in those submissions that, in the event I approved the Agreement subject to the undertakings, it did not object to the undertakings.

Relevant Law

Section 188(5) of the Act provides:

“In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that an employer complied with the provisions mentioned in subsection (2A) or (4) or (4A)), the FWC may disregard minor procedural or technical errors made in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: I-MED Regional Pty Ltd [2025] FWC 1477
Case: [2025] FWC 1477
Decision Date: 2 JUNE 2025

CaseChat Overview and Summary

In the Fair Work Commission case of I-MED Regional Pty Ltd, the Commissioner addressed an application for the approval of the I-MED Regional Victoria Enterprise Agreement 2023 under Section 185 of the Fair Work Act 2009. The primary dispute centred on whether the agreement had been genuinely agreed to by the employees, focusing specifically on whether the employer had fully explained the terms and effect of the updated classification structure as required by Section 180(5). The Health Services Union of Australia Victoria No. 3 Branch, trading as the Victorian Allied Professionals Association (VAHPA), opposed the application, arguing that the employer's failure to fully explain the classification structure constituted a significant procedural error that could not be disregarded under Section 188(5) of the Act.

The legal issue before the Commissioner was whether the employer's failure to explain the updated classification structure constituted a minor procedural or technical error that could be disregarded under Section 188(5) of the Act. The Commissioner needed to determine if the error was minor and whether the employees were likely to have been disadvantaged by the employer's failure to fully explain the terms and effect of the updated classification structure. The decision hinged on the interpretation of the Act and the principles established in previous cases, particularly in relation to what constitutes a minor procedural error that can be disregarded.

The Commissioner found that while I-MED Regional Pty Ltd had taken reasonable steps to explain the terms of the agreement, it had not taken all reasonable steps to explain the updated classification structure. This omission was not a minor procedural or technical error. The Commissioner reasoned that the underlying purpose of the requirement to explain terms and effects of an agreement was to ensure employees understood the agreement to make an informed decision. The failure to explain the updated classification structure meant that employees may not have fully understood the terms and effect of the agreement. This was not comparable to the error in FMS Group, where the employer had provided sufficient information to allow employees to understand the scope of the agreement. Consequently, the Commissioner could not disregard the error under Section 188(5) as it was not minor and could not be satisfied that employees were not likely to have been disadvantaged. As a result, the Commissioner concluded that the Agreement was not genuinely agreed to and dismissed the application for approval.

Orders