DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Capital Territory
(AG2020/3291)

ACT PUBLIC SECTOR MEDICAL PRACTITIONERS ENTERPRISE AGREEMENT 2017-2021

Health and welfare services
DEPUTY PRESIDENT DEAN	SYDNEY, 11 JANUARY 2021

Application for approval of the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 – whether single interest employers – whether terms explained to employees – application approved.

[1] An application has been made for approval of an enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 by the Australian Capital Territory (the ACT).

[2] Employees affected by this application presently work under the ACT Public Sector Medical Practitioners Enterprise Agreement 2013 – 2017 (the 2017 Agreement), the nominal expiry date of which was 30 June 2017.

[3] The Agreement is stated by the ACT to be a ‘single-enterprise agreement’ as that term is used within s.172(2) of the FW Act. The Agreement though covers both the ACT and “the Chief Executive of Calvary Health Care ACT Limited (Calvary) on behalf of the Australian Capital Territory”, with it being submitted the two are single interest employers engaged in a common enterprise (see s.172(5)(a)), with the common enterprise being the provision of public health services within the ACT.

[4] The Agreement has some history. It followed a protracted bargaining period of some three years. A previous application was made (AG2020/116) for its approval which was the subject of a number of objections by Mr John Wilson, a lawyer and bargaining representative on behalf of two employees, Drs Ashton and Berry, proposed to be covered by the Agreement. In a decision dated 29 May 2020 1, Commissioner Wilson found that the explanation of the Agreement to relevant employees in relation to one provision of the Agreement was insufficient and accordingly declined to approve the Agreement (the First Decision).

[5] A hearing was conducted on 11 December 2020 to hear Mr Wilson’s objections to the approval of the Agreement. At the hearing, Mr Andrew Pollock of Counsel appeared with permission for the ACT. Mr Wilson appeared for Drs Ashton and Berry. Mr Steve Ross appeared for the Australian Salaried Medical Officers Federation ACT Branch (ASMOF) and Mr Tony Chase appeared for the Australian Medical Association ACT Branch (AMA).

[6] For the reasons that follow, I am satisfied that the Agreement meets the requirements of the Act for approval.

Permission to be represented

[7] Mr Wilson objected to permission being given for the ACT to be represented by Mr Pollock on the basis that the ACT was capable of representing itself through its employed solicitors. I note that Mr Wilson did not require permission as he had been appointed as a bargaining representative for Drs Ashton and Berry.

[8] A Full Bench of the Commission 2 has recently confirmed that:

“The principles concerning the proper interpretation and application of s 596(2) are well established. The assessment of whether permission should…

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

Case: [2021] FWCA 109
Decision Date: 11 JANUARY 2021

CaseChat Overview and Summary

The Australian Capital Territory sought approval from the Fair Work Commission for the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021. The application hinged on the determination of whether the employers were single interest employers and whether the terms of the agreement had been adequately explained to the employees. The Fair Work Commission was tasked with deciding these critical issues to ensure the agreement's validity and compliance with relevant employment laws.

The primary legal issues before the Commission were whether the employers met the criteria of being single interest employers and if the employees were adequately informed about the terms of the proposed agreement. A single interest employer is defined under the Fair Work Act 2009 as an employer with a single interest in employment relations. The Commission had to assess whether the ACT government and the medical practitioners’ employers fulfilled this criterion. Furthermore, the Commission needed to ascertain whether the employers had effectively communicated the terms and conditions of the agreement to their employees, ensuring transparency and compliance with procedural fairness.

In determining the application, the Commission found that the employers were indeed single interest employers as they shared a common interest in the employment relations of the medical practitioners. Additionally, the Commission was satisfied that the terms of the agreement had been sufficiently explained to the employees. The Commission considered the process of communication and the adequacy of the information provided, concluding that the procedural fairness requirements were met. Consequently, the Commission approved the application for the agreement, affirming its validity under the Fair Work Act 2009.

The Fair Work Commission approved the application for the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021. The Commission's decision hinged on its findings that the employers were single interest employers and that the employees had been adequately informed about the terms of the agreement. This approval ensures the agreement's enforceability and compliance with employment laws.

Orders