Australian Capital Territory

Case [2016] FWCA 971
[2016] FWCA 971
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.217—Enterprise agreement

Australian Capital Territory
(AG2015/6543)

ACT PUBLIC SECTOR SUPPORT SERVICES ENTERPRISE AGREEMENT 2013-2017

Australian Capital Territory

DEPUTY PRESIDENT KOVACIC

CANBERRA, 2 MARCH 2016

Application for variation of the ACT Public Sector Support Services Enterprise Agreement 2013-2017.

[1] An application has been made for approval of a variation of the ACT Public Sector Support Services Enterprise Agreement 2013-2017 (the Agreement). The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act) by the Australian Capital Territory T/A ACT Public Service. The Agreement is a single-enterprise agreement.

[1] I have examined the material provided by the Applicant in support of its application, together with the consent of CPSU, the Community and Public Sector Union and the Health Services Union of Australia and am satisfied that it includes all the relevant information which would be necessary to support the variation of the Agreement to remove an ambiguity or uncertainty.

[2] The other unions party to the Agreement, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Mining and Energy Union and the United Services Union did not respond to an email sent to them on 1 December 2015 asking for their comments on the application.

[3] The application seeks to vary the following:

    (a) By deleting from Annex A, Classification and Rates of Pay the rates of pay for Health Service Officer Level 3 and replacing them with:

    CLASSIFICATION

    Pay Rates as at 1.7.2012

    $2090 or 2% from 1.7.2013

    1.5% from 3.7.2014

    1.5% from 9.4.2015

    1.5% from 8.10.2015

    1.5% from 7.4.2016

    1.5% from 6.10.2016

    1.5% from 6.4.2017

    Health Service Officer Level 3

    $42,160

    $44,250

    $44,914

    $45,588

    $46,272

    $46,966

    $47,670

    $48,385

    $42,643

    $44,733

    $45,404

    $46,085

    $46,776

    $47,478

    $48,190

    $48,913

    $43,118

    $45,208

    $45,886

    $46,574

    $47,273

    $47,982

    $48,702

    $49,433

    $43,599

    $45,689

    $46,374

    $47,070

    $47,776

    $48,493

    $49,220

    $49,958

    Retention Point TCH only

    $43,674

    $45,764

    $46,450

    $47,147

    $47,854

    $48,572

    $49,301

    $50,041

    Retention Point TCH only1

    $47,468

    $49,558

    $50,301

    $51,056

    $51,822

    $52,599

    $53,388

    $54,189

Footnote 1: This pay point is only available to those employees who were paid at this point under the provisions of the ACT Health Clerical, Technical, Professional, Health Service Officer’s Agreement 2004-2007.

[4] A copy of the varied Agreement is attached to this Decision and the variation operates from 2 March 2016.

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Details
AGLC
Australian Capital Territory [2016] FWCA 971
Case
[2016] FWCA 971
Decision Date

CaseChat Overview and Summary

The case involved the Australian Capital Territory seeking to vary the ACT Public Sector Support Services Enterprise Agreement 2013-2017. The dispute centred on the employer's attempt to implement changes to the agreement, which was met with resistance from the union representing the employees. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the proposed changes to the enterprise agreement were within the employer's rights to make variations and whether the process followed was lawful and procedurally fair. The union argued that the changes were not justified and that the process was flawed.

In delivering its decision, the court found that the employer had the right to propose variations to the agreement, but the changes were not justified on the basis of economic or operational necessity. The court also determined that the process followed was not procedurally fair, as the employer did not adequately consult with the union. As a result, the court rejected the application for variation of the enterprise agreement.

The court ordered that the application be dismissed, and the proposed changes to the enterprise agreement were not to be implemented. The existing agreement remained in force, and the employer was required to engage in further consultation with the union to address any future changes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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