Ramsay Health Care Australia Pty Limited

[2024] FWCA 1808

[2024] FWCA 1808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ramsay Health Care Australia Pty Limited

(AG2024/931)

RAMSAY HEALTH CARE QUEENSLAND HEALTH PROFESSIONALS ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER DURHAM	BRISBANE, 16 MAY 2024

Application for approval of the Ramsay Health Care Queensland Health Professionals Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Ramsay Health Care Queensland Health Professionals Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ramsay Health Care Australia Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

1. It is noted that the Notice of Employee Representational Rights (NERR) was issued to employees on 28 July 2022. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (Together ASU) were involved in the Agreement making process as union bargaining representatives. There were no employee bargaining representatives nominated and therefore none were not involved in the Agreement making process.  On 24 April 2024, Mr Robert Upton, an employee within the scope of the Agreement, sought to make submissions regarding the Agreement.  Mr Upton, a Radiographer, was of the view that the Agreement should not be approved.

1. On 1 May 2024, Mr Upton filed submissions, with the Applicant filing submissions in reply on 3 May 2024. Mr Upton’s submissions related to his lack of involvement in the process. Neither APESMA nor Together ASU made any submissions in relation to the issues raised by Mr Upton.

1. Mr Upton was concerned that he and all Radiographers (the specific employees) to be covered by the Agreement were only issued with the NERR on 19 October 2023.  The Applicant submits that the delay in the issuance of the NERR to the specific employees was due to them not being previously included in the scope of previous versions of the Agreement. The Applicant submits that once they became aware the specific employees were within the scope of the new Agreement, the NERR was issued to them.  In addition, the Applicant submits they wrote to each such employee to explain the Agreement and provide details as to how the Agreement would affect them.

1. In addition to the NERR, which indicates how an employee can seek to be represented, the information provided to Mr Upton and the specific employees at this time included an explanation as to how the proposed Agreement, if made, would affect them. The Applicant submits that at no point did Mr Upton nominate himself as a bargaining representative for the Agreement on behalf of himself or the other specific employees nor did he nominate any other person as his bargaining representative.

1. On 23 October 2023, Mr Upton wrote to the Applicant to provide feedback on the Agreement and raise several questions. The material before me indicates that the Applicant acknowledged and considered these concerns and responded to Mr Upton’s questions.

1. S.173(1) of the Act requires that an employer take all reasonable steps to give notice of the right to be represented by a bargaining representative. I am satisfied that whilst there was an initial error in the issuing of the NERR, immediately the oversight was identified, steps were taken to ensure that each of the specific employees received the NERR and to ensure that all such employees had the opportunity to appoint a bargaining representative.

1. Noting that the basis of Mr Upton’s objections relate to the late issuance of the NERR and lack of involvement, I am satisfied for the purposes of s.188(2) of the Act to use my discretion to disregard minor procedural or technical errors made in relation to the NERR, noting I am satisfied that the employees were not likely to have been disadvantaged by the error. Further, there was a considerable amount of time from when the NERR was issued to the specific employees on 19 October 2023 until the Applicant held a successful ballot in relation to the Agreement from 7 to 12 March 2024, for Mr Upton or for any of the specific employees to nominate a bargaining representative which they did not elect to do.

1. As such, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. APESMA and Together ASU, lodged respective Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers APESMA and Together ASU.

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 September 2026.

COMMISSIONER

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