Victorian Hospitals' Industrial Association v Health Services Union

[2022] FWCFB 239

[2022] FWCFB 239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Victorian Hospitals' Industrial Association

v

Health Services Union

(C2022/7944)

And

Victorian Hospitals' Industrial Association

Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026

(ODN AG2022/5276)  [AE518601]

DEPUTY PRESIDENT GOSTENCNIK

DEPUTY PRESIDENT MILLHOUSE COMMISSIONER LEE

MELBOURNE, 20 DECEMBER 2022

Appeal against decision [2022] FWCA 3966 of Deputy President Masson at Melbourne on 11 November 2022 in matter number AG2022/4550 and application for approval of the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026

1. This is an edited version of our decision delivered ex tempore and recorded in transcript on 15 December 2022. We ordered that permission to appeal be granted; the appeal be upheld; and the decision of Deputy President Masson in ReVictorian Hospitals' Industrial Association[1]  be quashed.[2] We also approved the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026 with undertakings.

C2022/7944

1. On 11 November 2022, the Deputy President approved that which purported to be an enterprise agreement titled the Allied Health Professionals Victorian Public Sector Single Interest Employers Enterprise Agreement 2021 - 2026, which covered some 78 public health facility employers which are single interest employers.

1. By notice of appeal dated 1 December 2022, the Victorian Hospitals’ Industrial Association (VHIA), in its capacity as a bargaining representative lodged an appeal for which permission is required, seeking that the decision to approve the purported enterprise agreement be quashed on the basis that the agreement approved by the Deputy President was not the agreement that was approved by employees, and therefore, was not made in accordance with the Act.

1. The circumstances which led to the erroneous document being lodged in the Commission for approval, are set out in a statutory declaration by Stuart John McCullough made on 9 December 2022, which has been marked as Exhibit 1 in these proceedings.

1. Without traversing the entirety of the statutory declaration, the essential facts, which are not contested, are that the agreement which was approved by employees was in a word file format. That document was then signed. The VHIA sought to convert the word document into a PDF file format. In the process, and without any human intervention, the document was corrupted whereby throughout the document, there are formatting and cross-referencing errors, such that the document no longer reflects the agreement that was approved by employees.

1. The essential proposition advanced by the VHIA on appeal with the support of the Health Services Union (HSU), which is also a bargaining representative, is that the agreement approved was not made in accordance with the requirements of the Act. We accept Mr McCullough’s evidence and the contentions advanced on appeal, and we are satisfied that the events as described are not the result of any bad faith or manipulation, but simply an error that has occurred because of that which may be described as a computer glitch. Plainly, on the undisputed facts, the agreement approved by Deputy President Masson, was not one that was made in accordance with section 182(1) of the Act, and so the document was incapable of being approved under section 186. In the circumstances, through no fault of the Deputy President, there was an error in the Deputy President’s decision to approve the agreement.

1. We are satisfied that it is in the public interest that permission to appeal be granted, and we do so, and for the reasons stated, we are satisfied that the member at first instance was in error in approving the purported agreement. So, we uphold the appeal and propose to quash the decision.

1. We therefore make the following orders:

·Permission to appeal is granted.

·The appeal is upheld.

·The decision in ReVictorian Hospitals' Industrial Association[2022] FWCA 3966 is quashed.

AG2022/5276

1. We propose to deal with the fresh application made by the VHIA to approve the Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026 (Agreement).

1. By correspondence to the chambers of the presiding member of 9 December 2022, the VHIA in its capacity as a bargaining representative for the Agreement, filed a new application for the approval of an enterprise agreement, that is the enterprise agreement that was approved by employees who voted for the Agreement, together with an employer declaration supporting the application and a signed copy of the Agreement as required by s 185(2) of the Act. Subsequently, the HSU also lodged a declaration indicating that it supports the approval of the Agreement and that it wants to be covered by it.

1. There are some matters that we need to deal with in connection with the application. The first, and most obvious, is that the application was lodged outside of the time prescribed by s 185(3) of the Act for making such applications. Given the erroneous lodgement of the purported enterprise agreement with the earlier approval application and the necessity for the approval decision to be appealed and set aside, we are satisfied in the circumstances, that it would be fair to allow a further period of the lodgement of the application, and we extend the period to 9 December 2022.

1. During the course of hearing the application, we raised some concerns about whether the Agreement passes the better off overall test, as required by s 186(2)(d). The VHIA, on behalf of the employers covered by the Agreement, has proffered undertakings. The undertakings have been the subject of consultation with the HSU and it supports the undertakings. On our review of the undertakings, we are satisfied that the undertakings meet our concern, that they will not likely cause financial detriment to any employee covered by the Agreement nor are they likely to result in any substantial changes to the Agreement.

1. There is an issue in connection with the notice of the details of the time, place and method of voting given to employees who are employed by one of the employers covered by the Agreement, that is Robinvale District Health Service. According to the materials, the employees received a notice setting out the time, place and method of voting on 10 October 2022. Voting commenced on 16 October 2022 and so plainly, the employees were not notified of the time, place and method of voting, at least seven clear days before the voting commenced, as required by section 180(3) of the Act.

1. Based on the material contained in the employer declaration in support of the application and the oral submissions made on behalf of the VHIA, we are satisfied that the error, such as it is, is a minor procedural error of the kind described in s 188(2)(a) of the Act and that the employees are not likely to have been disadvantaged by the error. Consequently, having regard to s 188(2) and the material in the employer declaration supporting the application, we are satisfied, notwithstanding the minor error, that the employees genuinely agreed to the Agreement.

1. We propose to accept the undertakings and with the undertakings, based on the employer declaration in support of the application, the documents accompanying it, together with the oral submissions made before us, we are satisfied that the approval requirements in ss 186, 187, 188 and 190, so far as they are relevant to this application, have been met. In accordance with s 201(3), we note that the undertakings are taken to be a term of the Agreement.

1. As we earlier indicated, the HSU is a bargaining representative and it has given notice that it wants to be covered by the Agreement, and in accordance with s 201(2), we note that the Agreement covers the HSU.

1. We therefore approve the Agreement, which will commence operation in accordance with section 54 of the Act on 22 December 2022. We note that the nominal expiry date of the Agreement is 28 February 2026.

DEPUTY PRESIDENT

Appearances:

Mr A. Massaro, solicitor for the appellant/applicant.
Mr A. Leszcynscki, employee of the respondent/employee bargaining representative.

Hearing details:

2022
Melbourne
15 December

[1] [2022] FWCA 3966

[2] PR748983

Printed by authority of the Commonwealth Government Printer

<PR748977>