Australian Capital Territory Summary

[2022] FWCA 346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory

(AG2021/9281)

ACT Public Sector Health Professional Enterprise Agreement 2021-2022

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 4 FEBRUARY 2022

Application for approval of the ACT Public Sector Health Professional Enterprise Agreement 2021-2022.

An application has been made for approval of an enterprise agreement known as the ACT Public Sector Health Professional Enterprise Agreement 2021-2022 (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 (Employer). 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.

The Agreement has a National Employment Standards (NES) precedence clause at clause A5.4 of the Agreement. I am therefore satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Association of Professional Engineers, Scientists and Managers, Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Maritime, Mining & Energy Union, CPSU, the Community and Public Sector Union, the Health Services Union of Australia and the United Services Union, being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they want the Agreement to cover their organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisations.

The Employer has also made an application pursuant to s.217 to vary the Agreement to remove ambiguity and uncertainty. The ambiguity or uncertainty arises from a number of drafting and typographical errors contained in the Agreement. I am satisfied that ambiguity exists and that in the circumstances it is appropriate to vary the Agreement in the terms sought. An amended version of the Agreement has been filed which incorporates the variation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Capital Territory (ACT) filed an application seeking approval of the ACT Public Sector Health Professional Enterprise Agreement 2021-2022, before the Fair Work Commission. The dispute involved the terms of the proposed agreement, which outlined the conditions of employment for health professionals within the public sector of the ACT. The Commission was tasked with ensuring that the agreement met the legal standards set forth in the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed agreement provided for fair and reasonable terms of employment, and whether it complied with the statutory requirements of the Fair Work Act. The Commission had to assess whether the agreement included provisions that were procedurally and substantively fair, and whether it aligned with the overarching principles of the Act, including those relating to good faith bargaining and the avoidance of industrial action.

In examining the agreement, the Commission considered various factors, including the economic circumstances of the parties, the need for a fair and efficient workplace, and the importance of maintaining a healthy and productive workforce. The Commission also evaluated the extent to which the agreement facilitated good faith bargaining and the prevention of industrial disputes. After thorough deliberation, the Commission determined that the proposed agreement was fair and reasonable, and therefore approved it. The Commission's decision was based on the conclusion that the agreement met all the necessary statutory requirements and was in the best interests of both the employees and the employer.

The final orders of the Commission included the approval of the ACT Public Sector Health Professional Enterprise Agreement 2021-2022, which was to take effect from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of health professionals in the ACT public sector for the specified period.

Australian Capital Territory

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established