Mental Health Victoria Ltd

[2021] FWCA 5562

[2021] FWCA 5562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Mental Health Victoria Ltd
(AG2021/6842)

MENTAL HEALTH VICTORIA (MHV) ENTERPRISE AGREEMENT 2019 - 2022

Social, community, home care and disability services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 7 SEPTEMBER 2021

Application for approval of the Mental Health Victoria (MHV) Enterprise Agreement 2019 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Mental Health Victoria (MHV) Enterprise Agreement 2019 – 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[5] The F17 declaration filed by the applicant indicated that employees were provided with voting information on 26 July 2021, the same day as voting opened. This means that the employees did not receive, by the start of the access period for the Agreement, notice of the time, place and method of the vote, as required by s 180(3) of the Act.

[6] The applicant submitted that although staff were provided with the voting email on 26 July – the same day as voting opened – staff were kept up to date regarding the progress of the Agreement at regular weekly staff meetings, where they were advised of the need to vote, the deadline for voting, and the voting mechanism.  Employees were able to vote at any time in the period from 26 July 2021 until 4 August 2021. In addition, 20 of 22 employees voted on the Agreement and they all voted in favour of the Agreement. As a consequence of these matters, the applicant submitted that this error is unlikely to have disadvantaged employees. 

[7] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration, and the submissions described above, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[8] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[10] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 14 September 2021. The nominal expiry date of the Agreement is 1 December 2022.

DEPUTY PRESIDENT

<AE513000  PR733606>

Printed by authority of the Commonwealth Government Printer

 1   [2019] FWCFB 318.

Annexure A.