Wrong company name on proposed EA found not to be a minor error
Overview
Commissioner Platt of the Fair Work Commission (FWC) in the recent decision of Healthe Care Surgical Pty Ltd T/A Healthe Care [2023] FWC 183 (20 January 2023), has dismissed an application for a proposed Enterprise Agreement (EA) on the basis that the employer used the wrong company name on the Notice to its employees.
Background Facts
An application had been made for approval of an EA known as the Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2022 (the proposed agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Healthe Care Surgical Pty Ltd T/A Healthe Care (the Applicant). The agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) was distributed via email on the 28 April 2022 and identified the employer as “Healthe Care Surgical Pty Ltd” and the title of the proposed agreement as “Health Care Surgical Pty Ltd Victorian Private Hospitals – Health Professionals Enterprise Agreement 2022”. The email refers to the entity “Healthe Care” but did not provide any further information as to the proposed employer.
In the initial review of proposed EA stage, the FWC raised the issue that the NERR distributed to the employees was not in the form required by s.174(1A) of the Act. This was as a result of the fact that the identity of the employer contained in the NERR was different to that in the Agreement. This issue was also raised by the Health Services’ Union (HSU) in their F18.
The Form F16 and F17 filed by the employer described the name of the Applicant as “Healthe Care Surgical Pty Ltd”. This then raised two issues for the FWC to consider.
The first was whether error in the entity name and the title of the agreement in the NERR, the Applicant has been compliant with s.173(1) and/or s.174(1A) of the Act.
If the NERR is not compliant with s.173(1) and/or 174(1A), this then raises the issue as to whether the enterprise agreement has been genuinely agreed to despite the non-compliance with s.173(1) and/or 174(1A), as a result of the error being one which is minor and procedural or technical in nature as per s.188(2) of the Act.
The parties were invited to respond to the issues. The Applicant provided written submissions (which was supported by the Union). It was argued by the Applicant that it:
did not include the correct legal name of the employing entity (entity error); and
did not include the correct title of the Agreement (title error).
The Applicant submitted that the Commission should be satisfied that both these matters constituted what they argued were minor procedural or technical errors within the scope of s.188(2) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
The FWC was not satisfied that s.174(1A) had been complied with. The FWC stated that the name of the employer in the NERR is not the name of the employer covered by the proposed agreement.
The FWC also rejected the submission that the differences are minor as the two entities are separate legal entitles.
Commissioner Platt stated as follows:
"It is theoretically possible the new entity (Healthe Care Valley Pty Ltd) may not be in the same financial position as the employer named in the NERR (Healthe Care Surgical Pty Ltd)”.
Key Takeaways
Employers need to be meticulous about the NERR and the F16 and F17 and cross check all the information provided by the employer including the details of the legal entity, etc.
This case demonstrates that the FWC will only approve fully compliant EAs.
Further, employers should not assume that minor errors will be overlooked by the FWC.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal
Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
