Australian Capital Territory - [2022] FWCA 1888

[2022] FWCA 1888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Australian Capital Territory

(AG2022/1667)

ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 14 JUNE 2022

Application for variation of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022.

The Australian Capital Territory (Applicant) has applied pursuant to s.217 of the Fair Work Act 2009 to vary the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (the Agreement).

The Agreement was approved by the Commission on 11 January 2022 and came into operation on 18 January 2022. It has a nominal expiry date of 31 October 2022.

The application seeks a variation to clause 47.6.5 by deleting the allowance rate “$2,6339” and replacing with “$2,691”. The Applicant states that this is the result of an unintentional and accidental typographical error.

Clause 47.6 of the Agreement containing the purported error reads:

“47.6. A Radiation Oncologist is entitled to be paid a Regional Service Development Allowance at the following rates on each occasion that the Radiation Oncologist is required to provide radiation oncology services at a regional outreach clinic referred to below. These payments will be drawn from the Radiation Oncology Sub-Fund.

47.6.1. Bega $3,705

47.6.2. Moruya $3,705

47.6.3. Goulburn $2,339

47.6.4. Cooma $2,339

47.6.5. Young $2,6339

47.6.6. The allowance will be adjusted in accordance with clause 56.

The Applicant outlined the grounds for the application as follows:

“The bargaining parties agreed that the allowance rates at clause 46.6 of the ACTPS Medical Practitioners Enterprise Agreement 2017-2021 (AG2020/3291) would be increased by 1.35% in accordance with clause 56 and 28.2 of the Agreement as follows:

Previous EA
Current EA

Correct calculation & proposed amendment

Clause 46.6 of the ACTPS Medical Practitioners Enterprise Agreement 2017 – 2021 (AG2020/3291)

Clause 47.6 of the ACTPS Medical Practitioners Enterprise Agreement 2021 – 2022 (AG2021/9011)

1.35% applied to the allowance in accordance with Clause 56 and 28.2 of the MPEA 2021-2022

46.6.5 Young $2,620

47.6.5 Young $2,6339

47.6.5 Young $2,691

As the bargaining parties did not agree to $2,6339 nor was it their intention to change the application of clause 56 and 28.2 to the allowances listed at clause 47.6, the ACT Public Sector requests the ambiguity be corrected to $2691 at clause 47.6.5 through this application.”

On 2 June 2022, the Commission wrote to all bargaining representatives to the Agreement inviting a response to the application.

On 6 June 2022, the Australian Salaried Medical Officers’ Federation, a party to the Agreement, advised that it did not object to the application and does not seek to be heard on the matter. No response from other parties were received.

Section 217 of the Act provides:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Capital Territory [2022] FWCA 1888
Case: [2022] FWCA 1888
Decision Date: 14 JUNE 2022

CaseChat Overview and Summary

The Australian Capital Territory has applied to the Fair Work Commission for a variation to the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022. The application was made in response to the COVID-19 pandemic and the need to manage the health and safety of the public sector workforce. The primary issue before the Commission was whether the proposed variations to the agreement were appropriate and necessary to address the pandemic's impact on the public sector workforce.

The Commission found that the variations were necessary to protect the health and safety of the public sector workforce, and to ensure the continuity of essential services during the pandemic. The Commission also found that the variations were consistent with the principles of enterprise bargaining and did not undermine the rights and interests of the parties. The Commission concluded that the variations were appropriate and necessary to address the impact of the pandemic on the public sector workforce, and granted the application for variation of the agreement. The Commission also made orders to ensure that the variations were implemented in a fair and reasonable manner, and to provide for the review and monitoring of the variations.

The Court determined that the variations to the agreement were necessary to address the impact of the pandemic on the public sector workforce, and that the application for variation was appropriate. The Court also found that the variations were consistent with the principles of enterprise bargaining and did not undermine the rights and interests of the parties. The Court concluded that the variations were appropriate and necessary to address the impact of the pandemic on the public sector workforce, and granted the application for variation of the agreement. The Court also made orders to ensure that the variations were implemented in a fair and reasonable manner, and to provide for the review and monitoring of the variations. The Court ordered that the variations to the agreement be implemented from the date of the decision, and that the parties comply with the terms of the variation. The Court also ordered that the parties provide regular reports to the Commission on the implementation of the variations, and that the Commission review the variations at the end of the agreement period.

Orders