Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations
[2022] FWCA 3136
•9 SEPTEMBER 2022
| [2022] FWCA 3136 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations
(AG2022/3641)
Royal Flying Doctor Service, Central Operations, Operations Co-ordinators Agreement 2021
| Industries not otherwise assigned | |
| COMMISSIONER PLATT | ADELAIDE, 9 SEPTEMBER 2022 |
Application for approval of the Royal Flying Doctor Service, Central Operations, Operations Co-ordinators Agreement 2021
An application has been made for approval of an enterprise agreement known as the Royal Flying Doctor Service, Central Operations, Operations Co-ordinators Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 6 September 2022.
On 7 September 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.
It is noted that on 26 July 2022, the Applicant advised its employees about the time and method of voting for the Agreement, and that the access period would commence on 30 July 2022. The voting was to commence on 8 August 2022 and conclude on 15 August 2022. On 10 August 2022, the Applicant became aware of an issue with their online voting platform. The employees were immediately advised that a corrected link would be provided, with voting to recommence at 5.00pm on 10 August 2022, and that there would be a longer period for voting, with voting to conclude at 5.00pm on 16 August 2022. Accordingly, the Applicant did not provide the employees with the details of the recommenced vote at least 7 clear days before the commencement of voting, contrary to s.180(3) of the Act.
In respect of this deficiency, the Applicant made submissions as to why I should exercise my discretion under s.188(2) of the Act to approve the Agreement despite what they say was a minor procedural or technical error. The Applicant contended that the employees were advised of the technical issues with the voting and the recommencement of the vote as soon as possible after the Applicant became aware of it. The Applicant also noted that 10 out of the 13 employees who were eligible to vote cast a valid vote, and of those who voted, 90% voted in favour of the Agreement. Even if the remaining three employees who did not cast a valid vote had voted against the Agreement being approved, 69% of all votes would have been if favour of the Agreement being approved.
The CPSU, the Community and Public Sector Union, a bargaining representative for the Agreement, neither supported nor opposed the Applicant’s submissions on s.188(2).
I do not believe that failure outlined above had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.
The Applicant has submitted an undertaking in the required form dated 8 September 2022. The undertaking was that personal leave will be available to Operations Co-ordinators in circumstances where they are required to provide care and support due to an unexpected emergency affecting an immediate family or household member, in accordance with s.97 of the Act.
A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not oppose the undertaking.
The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.
The CPSU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 8 September 2025.
COMMISSIONER
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