Application by Melbourne Health

[2012] FWA 7718

[2012] FWA 7718

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity - agreement

Application by Melbourne Health
(AG2012/10237)

COMMISSIONER LEWIN MELBOURNE, 21 SEPTEMBER 2012

[1] On 3 April 2009 the Full Bench of the Australian Industrial Relations Commission (“AIRC”) decided to make workplace determinations in relation to 68 bargaining periods which had been initiated under s.503 of the Workplace Relations Act 1996 and terminated under s.430(1) and s.430(3),in relation to the terms of conditions of employment of professional employees of Victorian health services in the public health system. The Health Services Union - Health Professionals - Melbourne Health Workplace Determination 2009 1 (‘the Determination’) was among them.

[2] In the decision to make the determinations the Full bench decided to provide for increases to the wages payable to employees to be covered by the workplace determinations. The increases were to be to the existing rates of pay prescribed by certified agreements applicable to the employees to be covered by the determinations at the time they were made. The Full Bench said as follows:

‘...we have concluded that an initial adjustment of 5.25% is justified with further annual increments of 3.25% for the life of the determination. In light of the delays occasioned by the parties’ attempts to resolve the matter through private and Commission assisted bargaining subsequent to the termination of the bargaining period and the delay in publishing our decision we are satisfied that there are special and compelling circumstances for making the adjustment retrospective. Accordingly, the initial 5.25% increase will be retrospective to 21 November 2008, i.e. the last day for filing written submissions at the conclusion of the hearing. We will come in due course to the term or duration of the determination.’ 2

[3] The parties were to draft the terms of workplace determinations to give effect to the decision of the Full Bench. Given the complexity and extent of the orders to be made consequent upon the AIRC decision the parties took some time to submit draft orders. Additionally, some matters of substance arose which were the subject of a Full Bench decision on 3 April 2009. 3 The determinations were ultimately issued on 12 October 2010 on an agreed basis.4

[4] The Victorian Hospitals Industrial Association (‘VHIA’), on behalf of Melbourne Health and with the support and consent of the Health Services Union of Australia (‘HSU’) now seek a correction to an error undetected by the parties and the AIRC in the table of rates applicable to employees within the classifications of work in Renal Dialysis Grade 2 under theDetermination, to give proper effect to the decision of the Full Bench. The wage rates and increments prescribed for such employees in the Determination do not reflect the decision of the Full Bench.

[5] The Determination in respect of which the VHIA’s application is made is a workplace determination for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (‘the Transitional Act’).

[6] I am satisfied that the Determination erroneously prescribes wage rates in excess of those determined to apply by a Full Bench of the AIRC and thereby creates uncertainty. The uncertainty may be removed by Fair Work Australia.

[7] Exercising the power under Item 10(a) of Part 3 of Schedule 3 of the Transitional Act, Fair Work Australia will issue an order accordingly.

COMMISSIONER

 1   AG881108; PR502154.

 2   [2009] AIRCFB 353, para 49.

 3   Ibid.

 4   PR502154

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<Price code A, AG881108  PR528864>