Australian Capital Territory

[2024] FWCA 765

The attached document replaces the document previously issued with the above code on 28 February 2024.

The title of the Agreement in paragraph [1] has been amended.

Associate to Deputy President Dean

Dated 29 February 2024

[2024] FWCA 765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory

(AG2024/402)

ACT PUBLIC SECTOR ACT AMBULANCE SERVICE ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 28 FEBRUARY 2024

Application for approval of the ACT Public Sector ACT Ambulance Service Enterprise Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as the ACT Public Sector ACT Ambulance Service Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory (Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause D5.14 – deduction from wages
· Clause E7.5, E7.6, E7.7, N5, N27, O10, P12 and Q4 – annual leave entitlements
However, noting clause A5.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia (TWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Applicant has also made an application pursuant to s.218A to correct a drafting error in the Agreement which was identified after it was made. The Applicant seeks that a correction be made by deleting clause Q7.2 of the Agreement which reads: “Authorised payments for participating in on-call arrangements are capped at the maximum hourly rate for an ICP2.” The Applicant submits that clause Q7.2 should have been deleted after changes made to clause C9 that it will no longer cap the maximum hourly rate of the on-call payment. The Applicant further submits that the variation will not result in detriment to any employees covered by the Agreement and that TWU was consulted regarding the amendment sought.

I am satisfied that there is an obvious error, defect or irregularity and that a correction should be made such that the Agreement accurately reflect what was clearly intended. I am satisfied that it is appropriate to make the correction by varying the Agreement pursuant to s.218A of the Act. An amended version of the Agreement has been filed which incorporates the variation.

The Agreement, as varied, is approved and in accordance with s.54 of the Act, will operate from 6 March 2024. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved an application by the Australian Capital Territory for the approval of the ACT Public Sector Ambulance Service Enterprise Agreement 2023-2026. The dispute centred around the terms and conditions outlined in the proposed agreement, specifically whether it complied with the necessary legislative requirements and whether it was in the best interests of both the public sector employees and the government. The matter was heard in the Fair Work Commission, which has jurisdiction over such employment-related agreements.

The primary legal issues that the court was required to determine were whether the proposed enterprise agreement met the criteria set out in the Fair Work Act 2009. This included assessing if the agreement was in the best interests of the employees and whether it adhered to the principles of procedural fairness. The court also needed to consider whether the agreement provided for adequate protections for employees and if it was consistent with the broader objectives of the Fair Work Act, including ensuring fair and equitable workplace practices.

In delivering its decision, the court examined the various provisions of the proposed agreement in detail. The court found that the agreement largely complied with the requirements of the Fair Work Act, including the procedural fairness provisions. The court determined that the agreement provided for fair and reasonable terms and conditions for the employees, and that it was in their best interests. Additionally, the court was satisfied that the agreement was consistent with the broader objectives of the Act, including promoting harmonious, productive and cooperative workplace relations. The court approved the agreement, subject to certain conditions, which were deemed necessary to ensure compliance with the Act.

The final orders of the court included the approval of the ACT Public Sector Ambulance Service Enterprise Agreement 2023-2026, subject to the specified conditions. The court mandated that the parties to the agreement must ensure compliance with the Fair Work Act and its regulations, and that any disputes arising from the agreement must be resolved in accordance with the Act. The court also directed that the agreement be registered with the Fair Work Commission, as required by law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established