Radploy Pty Ltd t/a Lake Imaging

[2024] FWCA 524

[2024] FWCA 524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Radploy Pty Ltd t/a Lake Imaging

(AG2024/18)

LAKE IMAGING ENTERPRISE AGREEMENT (MEDICAL IMAGING STAFF – BALLARAT REGION) 2023

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Lake Imaging Enterprise Agreement (Medical Imaging Staff – Ballarat Region) 2023

1. Radploy Pty Ltd has made an application for approval of the Lake Imaging Enterprise Agreement (Medical Imaging Staff – Ballarat Region) 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. In its F18 declaration, the Health Services Union (HSU), a bargaining representative for the Agreement, objected to the approval of the Agreement on the basis that the company’s explanation of the terms of the Agreement to employees pursuant to s 180(5) was wrong in one important respect. The explanation document provided to employees said that the additional two weeks of paid parental leave provided to employees under clause 34.2 of the Agreement would ‘be available to eligible employees upon a successful vote’, whereas clause 34.2 makes no mention of the new benefit being available to employees ‘upon a successful vote’, or prior to the commencement of the Agreement’s operation. The union noted that in this respect, the clause differed from clause 33.1 of the Agreement, which specifically states that employees will be entitled to certain additional leave benefits ‘from the date the Agreement is made by successful vote of employees to approve the agreement’.

1. The HSU said that it was aware of at least two employees who were pregnant at the commencement of the access period and that it was foreseeable that they might commence a period of parental leave between the vote on the Agreement and the commencement of the Agreement’s operation. The union said that the incorrect explanation of clause 34.2 was reasonably likely to have had a significant effect on how those employees voted. It said that this matter could not be regarded as a minor technical or procedural error for the purposes of s 188(2) (the pre-reform provision is relevant because the notification date for the Agreement was 11 April 2023), nor was it the case that the error did not disadvantage employees, therefore the error could not be waived under s 188(2). The HSU suggested that an undertaking be provided to the effect that any employee who is on parental leave at the time the Agreement comes into operation is entitled to the additional paid parental leave benefits in clause 34.2. It said that this would align clause 34.2 with the company’s representation, and that the Agreement would then have been genuinely agreed.

1. The company submitted that the error in its explanation document was of no consequence because clause 34.2 does not restrict when the period of paid parental leave can be taken. Any employee who is on parental leave when the Agreement operates would be entitled to the additional paid parental leave. Of the 44 employees covered by the Agreement, three are currently on parental leave: two commenced leave before the vote on the Agreement, and one commenced leave after the vote. The company said that all of them would be able to access the additional parental leave benefits in clause 34.2.

1. I agree with the company that the mistake in the explanatory document appears to be inconsequential. The new parental leave benefits were not immediately available to be taken upon a successful vote. But as I understand it, there were no employees seeking to take the paid component of their parental leave during the period between the vote and the commencement of the Agreement’s operation. The HSU appears to apprehend that if an employee commenced parental leave before the Agreement comes into operation, they would not be able to access the new paid leave benefit. But clause 34.2 does not say this. The new parental leave benefits are available to employees irrespective of when they commence their parental leave.

1. Nevertheless, the HSU pressed its concern and sought to be heard further on the matter in the event that the company declined to offer an undertaking. The company yesterday provided an undertaking in the terms proposed by the union. I note that, to be able to accept an undertaking, the Commission must have a ‘concern’ that an approval requirement for the agreement has not been met (see s 190(1)(b)). As I have said in other matters, to have a ‘concern’ does not imply that the Commission has concluded that a requirement has not been met. With some difficulty, I am prepared to accept that there is a basis for the Commission to have a ‘concern’ about the matter raised by the HSU, if only because it is possible that the union might be able to develop its argument at a hearing. I will accept the undertaking. It meets the requirements of s 190. It addresses the concern. The undertaking is a term of the Agreement. A copy is attached in Annexure A.

1. I am satisfied that all of the approval requirements for the Agreement have been met. In particular, I am satisfied that the Agreement was genuinely agreed, and that it passes the ‘better off overall test’ (s 193), given the various benefits provided under the Agreement that are more generous than those of the relevant award, particularly in relation to wages and additional paid leave. The HSU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the HSU. The Agreement was approved on 6 February 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

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Annexure A