FWA 3473
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Healthcare Imaging Services
Health and welfare services
SYDNEY, 4 MAY 2010
Healthcare Imaging Services (NSW) Collective Agreement 2010.
 An application has been made for the approval of an enterprise agreement titled the Healthcare Imaging Services (NSW) Collective Agreement 2010 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”). It has been made by “Healthcare Imaging Services”, which I will refer to as “the applicant”. However, there is no corporate entity properly identified in the Form F16 (Application for Approval of Enterprise Agreement), the Form F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement) or in the Forms F18 (Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement.). It appears clear from the definition of “company” in cl.3 of the Agreement that the corporate entity proposed to be covered by the Agreement is as follows:
“Company” is the employer Healthcare Imaging Services Pty Ltd ABN [number] a Primary Healthcare Limited company trading as Healthcare Imaging Pty Ltd”.
 The Form F16 requires information about the details of any employee organisations or non-union representatives that were bargaining representatives for the Agreement. At cl.4 of the Form F16, the applicant did not identify any employee organisations that were bargaining representatives for the Agreement. Moreover, cl.5 of the Form F16 indicated there were no other non-union employee bargaining representatives.
 Although the Form F16 did not identify any employee organisation as having been a bargaining representative, the Health Services Union (NSW/ACT Branch) (“the union”) was a bargaining agent for the Agreement. Moreover, the applicant filed with the application a Form F18, declared by a person purporting to be a bargaining representative from an employee organisation, albeit it appears the declarant was simply an employee of the applicant.
Objections by HSU
 The union has raised various concerns about the processes leading to the making of the Agreement. In particular, the union contends some information in the Form F17 is incorrect. The union submitted the Agreement cannot be approved for failure to comply with certain pre-approval steps of the Act.
 By way of short background, the Agreement is a single-enterprise agreement. It would apply to the applicant’s employees at various workplaces in New South Wales. The addresses of those workplaces were not identified in the papers filed by the applicant.
 On 9 February 2010, the applicant made arrangements for an email to be sent to various workplaces with copies of certain documents (“the documents”), which were described in the email evidence as follows:
“1. Healthcare Imaging NSW EBA 2010
2. EBA QA document
3. Voting instructions Feb 22-24.”
 Clause 2.4.1 of the Form F17 is concerned with the provisions of s.180(2)(a) of the Act. The question and answer in the employer’s declaration read as follows:
“2.4.1 Please specify the steps taken by the employer to ensure that the relevant employees were given, or had access to, the written text of the agreement and any other material incorporated by reference in the agreement during the 7 day period ending immediately before the start of the voting process: (s.180(2)(a))
9th February 2010 – all sites received the Enterprise Agreement, a Question and Answer document to the Agreement, and instructions on the Voting Process.”
 The following information was provided at cl.2.5 of the employer’s declaration:
“2.5 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used: (s.180(3))
9th February 2010 – all sites received formal instructions on the Voting Process. This was pinned up on Staff Notice Boards and staff were asked to initial that they had read the procedure.”
 Further, the following information was provided at cl.2.6 of the employer’s declaration:
“2.6. Please specify the steps taken by the employer to explain the terms of the agreement, and the effect of those terms, to relevant employees: (s.180(5))
All sites and employees were sent a copy of the proposed EBA with a shorter document which outlined the main differences from our 2007 Agreement.
Committee representatives visited all 85 sites separately to discuss any and all aspects of the Agreement.
Employees were able to request an interpreter if they required one.
 As I have noted earlier, the Form F18 filed by the applicant indicating concurrence with the responses provided in the employer’s declaration does not appear to have been completed by a person who was a representative of an employee organisation (and that person could not, therefore, properly purport to complete a Form F18). This same person signed the Agreement under the description of “Employee of Healthcare Imaging Services”.
 For its part, the union initially filed a Form F18 on 16 March 2010 indicating concurrence with the responses in the employer’s declaration. However, an amended Form F18 subsequently was tendered as Exhibit 4 in proceedings on 29 April 2010. Exhibit 4 disputed the responses provided in cl.2.5 and cl.2.6 of the employer’s declaration. Exhibit 4 stated at cl.1.7 that “evidence now to hand” indicated all sites did not receive the documents on the date stated in the employer’s declaration. Exhibit 4 further disputed the contention that committee representatives visited all sites, stating there was no evidence to support the view such visits occurred at workplaces at Blacktown and Castle Hill.
 Despite the responses provided in the employer’s declaration that all workplaces received the documents on 9 February 2010, it is now common ground the applicant did not electronically transmit the documents to a workplace located in Blacktown on that date. On 16 February 2010, an officer of the applicant forwarded an email to the Blacktown workplace apologising for not having sent a copy of the documents, and belatedly attaching the documents. Moreover, on 19 February 2010, an email was sent to a workplace at Castle Hill attaching the documents.
 There was also evidence of emails involving an employee on maternity leave, who said she had been “actively involved in previous agreements”. The email exchanges indicated the employee was not provided with the documents until 23 February 2010, which was after the voting had opened. The email correspondence also indicated the employee’s dissatisfaction about the lack of information. The email noted she wished to make a “formal complaint” concerning “a very serious matter as it affects my rights as an employee”. An officer of the applicant apologised for overlooking her, and invited her to vote anyway.
 While there was undisputed evidence the documents were forwarded to a workplace at Castle Hill on 19 February 2010, the applicant contended the Agreement was not intended to apply to this particular workplace. No evidence was advanced by either the applicant or the union in support of their competing submissions as to whether the Castle Hill employees were to be covered by the Agreement. No proper evidence was adduced by the applicant or the union in relation to site visits, or lack thereto, by committee members to Blacktown and Castle Hill.
 Mr T Stevanja of the union submitted the evidence indicated certain employees were provided with the documents on dates which would offend the pre-approval requirements of the Act. In so submitting, he referred to various provisions of the Act relevant to pre-approval requirements. Even if the number of employees was small, the Act, he submitted, does not specify a percentage of employees who are to have access to specified materials. The Act is “straightforward”, he submitted; it refers to the employees, not a minimum percentage or number of them. Therefore, the relevant question was whether the Agreement could be considered to have been properly made. Mr Stevanja submitted that the applicant’s failure to provide the documents to the employees in question was indicative of what the union considered to be more general problems it perceived with the applicant’s alleged approach to the making of the Agreement. While Mr Stevanja’s submissions referred to a range of matters, he submitted the application for approval should be refused for failure to meet the pre-approval requirements concerning the provision of the documents to the employees in question. This was sufficient, without more, to render the Agreement incapable of approval.
 Mr S Burke, solicitor for the applicant, submitted as follows:
“5. The applicant admits that:
(a) three employees only had access to the proposed agreement, a “Questions and Answer Document” (attachment A) and information regarding the voting process (attachment B) six days before the voting commenced on 22 February 2010;
(b) one further employee who was absent from the workplace on maternity leave only had access to the proposed agreement and other documents set out in paragraph 5(a) above on the day after voting commenced on 22 February 2010.
6. Pursuant to section 181 the applicant requested employees to approve the proposed agreement by voting for it. An electronic vote to approve the agreement was held on 22-24 February 2010. 688 employees were entitled to vote (excluding those identified in paragraph 5 above). 65% of those employees who were entitled to vote did vote. 64% of the votes validly cast approved the agreement. The agreement was validly made as required in section 182 of the Act.”
 Mr Burke submitted that notwithstanding the matters admitted as to the Blacktown workplace and the employee on maternity leave, the applicant should not be found to have failed to take all reasonable steps within the meaning of s.180 of the Act. Mr Burke submitted this contention was advanced on the basis it would have made no difference to the outcome of the ballot had the employees identified in the admissions actually voted, given the total number of employees concerned. Mr Burke further submitted that even if the number of employees covered by the Agreement included the employees at Castle Hill (which was not admitted by the applicant), the inclusion of those employees similarly would have made no difference to the outcome of the vote.
 The access period for a proposed enterprise agreement is the seven-day period ending immediately before the start of the voting process. Section 180 of the Act provides that the employer must take all reasonable steps to ensure that during the access period for the agreement, the employees employed at the time who will be covered by the agreement are given a copy of, or access to the written text of the agreement and any other material incorporated by reference in the agreement. The employer must also take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement: (a) the time and place at which the vote will occur; (b) the voting method that will be used.
 Here, the applicant did not take any steps, reasonable or otherwise, to ensure the employees at the Blacktown workplace and an employee on maternity leave were provided with information and materials consistently with the timeframes required in s.180 of the Act. As I have noted, neither the applicant nor the union adduced any evidence on which I can determine whether the Castle Hill workplace was to be covered by the Agreement.
 As to the union’s submission that the employees at Blacktown (and Castle Hill) went to the voting process without any explanation or understanding of the proposed agreement or associated processes, Mr Burke submitted that the material sent by the applicant to all employees to be covered by the vote included a “Question and Answer Document”. As to this submission, I note it is, however, common ground that such information was provided to some employees on dates which do not satisfy the pre-approval timeframes. The applicant further submitted that all employees were invited to presentations in November and December 2009, at which the proposed agreement was discussed in broad terms in the context of a business update. However, there was no evidence to support this submission; and, even if accepted as described in the applicant’s submissions, the broad discussions late last year in the context of a business update probably would not meet the requirements of the Act.
 Mr Burke also referred to a number of cases, including, for example, Australian Workers’ Union v BlueScope Steel (AIS) Pty Ltd  NSWIRComm 71 at -. That case concerned the question of whether reasonable steps had been taken to ensure compliance with dispute orders made under the Industrial Relations Act 1996 (NSW). Mr Burke submitted, in effect, that the application of the principles in the cases to which he referred would lead to an outcome that would have a similar bearing and a similar outcome in relation to this application. I note that although Mr Burke referred to a number of cases in support of his submissions, none of those cases involved a consideration of the pre-approval steps in the Act, which is the statute here under consideration. The cases do not seem to be apposite.
 The applicant has not, by its own admission, met the pre-approval requirements concerning the employees at Blacktown and an employee absent on maternity leave. As to this, Mr Burke emphasised the applicant did not, however, concede it had failed generally to meet the pre-approval requirements - given the operation of the words “reasonable steps” within s.180 of the Act. As I have noted, the applicant did not take any steps, reasonable or otherwise, in relation to this admittedly small group of employees. I am inclined to accept the union’s submission that the fact the votes of the employees concerned would not have altered the outcome of the ballot does not relevantly arise, considered in terms of the Act, when determining the question of whether the applicant has discharged its obligations as to the pre-approval requirements. As Mr Stevanja submitted, it does not seem to be open to adopt some form of sliding scale in relation to the pre-approval steps, based on whether the employees’ votes would have altered the outcome of the ballot. I note also, in passing, that the applicant’s failure to treat an employee absent on maternity leave in the same way as the majority of other employees in connection with the provision of information about the Agreement and the ballot may well be regarded as potentially discriminatory on the basis of pregnancy, even if unintentionally so.
 Mr Stevanja’s submissions referred to a number of other matters, which, he contended, disclosed breaches of the pre-approval requirements in the Act. Those matters were generally contested in the submissions made by Mr Burke on behalf of the applicant. There is, however, no evidentiary basis on which I could determine these contested assertions and counter-assertions about other pre-approval requirements, in circumstances where the applicant and the union did not adduce evidence I could properly accept in support of their respective contentions. For example, I accept the evidence indicated the email to the Castle Hill workplace was sent on 19 February 2010. However, there is no evidence one way or the other on which to determine whether the employees at Castle Hill were actually proposed to be covered by the Agreement, despite the competing submissions thereto of the applicant and the union. The union’s submissions referred to a range of other allegations about the applicant’s conduct, but, again, neither those submissions nor those of the applicant in contesting such matters was properly supported by witness evidence.
 As to the matters that were identified in evidence as being common ground, I prefer the submissions of the union concerning the operation of the pre-approval requirements of the Act in relation to this application.
 Even if it had been open to accept Mr Burke’s submissions concerning the small number of employees who were affected by the applicant’s failure provide them with the documents within the timeframes specified in the Act, I would, on any resumption of proceedings, have raised at least one pre-approval requirement that was not raised in the union’s contentions. As noted earlier, the employer’s declaration indicated that the steps the applicant took to ensure employees were given, or had access to, the written text of the Agreement and any other material incorporated by reference in the Agreement, were providing the documents to (most) employees on 9 February 2010. There is, however, nothing in the employer’s declaration or in the further evidence or submissions to suggest the applicant took steps to provide, or give access to, material incorporated by reference in the Agreement. For example, I note cl.33 of the Agreement provides that the counselling and disciplinary procedures “Will be in accordance with Primary Health Care policy”. If the policy of Primary Health Care is more detailed than as set out in cl.33 of the Agreement, then there was nothing to suggest the policy was provided to any employees at any workplace. Similarly, cl.55 of the Agreement states that on-call rates are to be paid in accordance with fees listed on the “current item schedule” - but that schedule does not appear to be contained in the Agreement itself. Absent any other considerations, if these incorporated materials were not provided to the employees, this may – and I put it no higher than that in circumstances where the applicant and the union have not addressed this matter – have presented further difficulties.
 It is unnecessary, however, to further consider whether there are additional issues about the pre-approval steps, given that I prefer the union’s contentions concerning the matters it raised as threshold objections in relation to those matters which are common ground. As the pre-approval requirements of s.180 of the Act have not been met, the Agreement is incapable of approval. The application for approval of the Agreement made pursuant to s.185 of the Act must be refused. Accordingly, the application is dismissed.
S. Burke, solicitor, for Healthcare Imaging Services Pty Ltd.
T. Stevanja for the Health Services Union (NSW/ACT Branch)
March 17, 31;
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