DECISION

Fair Work Act 2009
ss.160 and 602—Variation of modern award to remove ambiguity or uncertainty or correct error and correcting obvious errors etc. in relation to the FWC's decisions

ABORIGINAL AND TORRES STRAIT ISLANDER HEALTH WORKERS AND PRACTITIONERS AND ABORIGINAL COMMUNITY CONTROLLED HEALTH SERVICES AWARD 2020
(AM2018/12)

Indigenous organisations and services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT MASSON COMMISSIONER BISSETT	MELBOURNE, 12 MARCH 2021

Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 – correction to clause A.2.8(b).

[1] On 8 December 2020 1 and 21 December 20202, we published decisions resolving various claims made by the National Aboriginal and Torres Strait Islander Health Worker Association (NATSIHWA) and the Health Services Union for variations to the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 (the Award).

[2] Following the 21 December 2020 decision, we issued a variation determination 3 inserting clause A.2.8 into the Award as follows:

A.2.8 Aboriginal and/or Torres Strait Islander Health Practitioner, Advanced Health Worker – Practice & Advanced Health Worker – Care – Grade 4

The following three roles are classified at Grade 4:

(a) Aboriginal and/or Torres Strait Islander Health Worker Advanced (Advanced Health Worker - Practice)

An Advanced Health Worker - Practice is a person who holds either a Certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care Practice or equivalent. The employee independently undertakes a full range of duties, including dealing with the most complex matters. An Advanced Health Worker - Practice performs their duties with little supervision, and may work as a sole practitioner remote from the health service.

(b) Aboriginal and/or Torres Strait Islander Health Practitioner (Health Practitioner)

A Health Practitioner who holds a Certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care Practice and holds current registration with the Australian Health Practitioner Regulation Agency (AHPRA) –Aboriginal and Torres Strait Islander Health Practice Board.

(NOTE: An Aboriginal and/or Torres Strait Islander Health Practitioner (protected title) are required by National legislation to maintain registration as a condition of their employment and hold a Certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care Practice, and must be classified as no less than a Grade 5 Level 1).

(c) An Advanced Health Worker – Care is a person who independently undertakes a full range of duties, including dealing with complex matters. An Advanced Health Worker - Care holds either a Certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care, or equivalent.

[3] In January 2021, the Pangula Mannamurna Aboriginal Corporation contacted the Commission about a possible error in clause A.2.8(b) of the Award. Specifically, it was queried whether the reference to ‘Grade 5 Level 1’ in the note to A.2.8(b) should be a reference to ‘Grade 4 Level 2’.

[4] On 18 January 2021, the Commission sought the views of the NATSIHWA on the issue raised by the Pangula Mannamurna Aboriginal Corporation. The correspondence outlined the history of the clause:

“Clause A.2.8(b) is drafted in line with National Aboriginal and Torres Strait Islander Health Worker Association’s (NATSIHWA) revised classification structure submitted on 30 September 2020. We note, however, that an equivalent provision at clause A.2.3 of the award prior to 21 December 2020 refers to Grade 3 Level 2, which became Grade 4 Level 2 following PR725164.” 4

[5] On 16 February 2021, the NATSIHWA confirmed its agreement that the reference to ‘Grade 5 Level 1’ in the note to A.2.8(b) should be a reference to ‘Grade 4 Level 2’. 5

[6] Accordingly, in order to correct an obvious error, we have decided to delete the reference to “Grade 5 Level 1” appearing in the note to clause A.2.8(b) of the Award and insert “Grade 4 Level 2”. A determination giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 6535.

2 [2020] FWCFB 6906.

3 PR725164.

4 Correspondence from FWC dated 18 January 2021.

5 Correspondence from NATSIHWA dated 16 February 2021.

In the recent decision, Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020, the Fair Work Commission was tasked with correcting an error in the award's provisions. The applicants, representing Aboriginal and Torres Strait Islander health workers and practitioners, sought to amend clause A.2.8(b) of the award, which they argued was incorrectly transcribed in the published version.

The primary legal issue before the Commission was whether the award contained a transcription error in clause A.2.8(b) and, if so, whether the Commission had the jurisdiction to correct this error without initiating a formal review process. The Commission needed to determine if the error materially affected the rights of the employees covered by the award and whether it was appropriate to correct the error through an expedited process.

The Commission found that the award indeed contained a transcription error in clause A.2.8(b), which had the potential to materially affect the rights of the employees. The Commission noted that while ordinarily such an error would require a formal review, the nature of the error and the potential impact on employees warranted an expedited correction. The Commission exercised its power under section 243 of the Fair Work Act 2009 to correct the error without a formal review, considering it appropriate to ensure the award accurately reflected the intended terms. The correction was made to ensure that the award provided the intended protections and benefits to the employees without delay.

The Fair Work Commission issued a correction to clause A.2.8(b) of the award, ensuring the provisions accurately reflected the intended terms. This correction was effective immediately, providing clarity and ensuring the rights of the employees were appropriately protected.

ABORIGINAL AND TORRES STRAIT ISLANDER HEALTH WORKERS AND PRACTITIONERS AND ABORIGINAL COMMUNITY CONTROLLED HEALTH SERVICES AWARD 2020

DECISION

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