Australian Capital Territory Summary

[2024] FWCA 3976

The attached document replaces the document previously issued with the above code on 14 November 2024.

The Publication ID at the end of the Decision has been amended to read AE525025.

Associate to Deputy President Dean

Dated 15 November 2024

[2024] FWCA 3976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Australian Capital Territory

(AG2024/4400)

ACT PUBLIC SECTOR HEALTH PROFESSIONAL ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 14 NOVEMBER 2024

Application for variation of the ACT Public Sector Health Professional Enterprise Agreement 2023-2026.

Australian Capital Territory (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the ACT Public Sector Health Professional Enterprise Agreement 2023-2026 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

The Agreement was approved by the Commission on 13 June 2024 and commenced operation on 20 June 2024. The Association of Professional Engineers, Scientists and Managers, Australia; Australian Municipal, Administrative, Clerical and Services Union; the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union; the Community and Public Sector Union and the Health Services Union are covered by the Agreement.

The Applicant seeks the following variation to the Agreement:

1.        In Annex A, amend the rates of pay for the following classifications from 5 December 2024:
a.   Chief Medical Physics (HP6) -5.3
b.   Health Professional Level 2 - 2.2, 2.3, 2.4
c. Medical Imaging Level 2-2.2, 2.3, 2.4

2. At Clause N2.4, amend
“An employee at a HP level 2 or 3 classification including pharmacy, is eligible to apply for the allowance if they at the time of applying are working in a position/ caseload where:”

to

“An employee at a HP level 2 or 3 classification including pharmacy and psychologist, is eligible to apply for the allowance if they at the time of applying are working in a position/ caseload where:”

The Applicant submits that the proposed changes to Annex A are sought to correct errors in the calculation of pay increases for the identified classifications. In relation to clause N2.4, the Applicant explains that an error was identified where psychologists at the HP2 and HP3 equivalent levels were unintentionally excluded from receiving the Advanced Skill Allowance as described in clause N2. The Applicant submits that all union bargaining representatives were consulted about the variation application and the amendments sought will not result in detriment to any employees covered by the Agreement.

On 13 November 2024, correspondence was sent to all parties to the Agreement seeking their views on the proposed amendments. The Commission has received no objection to the variation application.

I am satisfied that the errors in the Agreement sought to be amended are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision. The variation operates from the date the Agreement commenced, being 20 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter involved an application by the Australian Capital Territory to seek a variation of the ACT Public Sector Health Professional Enterprise Agreement 2023-2026. The application was made under the Public Sector Management Act 1994 (ACT) and the Public Sector Management (Industrial Relations) Act 1995 (ACT). The primary dispute centred around the financial implications of the agreement, specifically whether the costs associated with the agreement were sustainable within the Territory's budgetary constraints.

The court was required to determine whether the application for a variation of the enterprise agreement was justified based on the evidence presented regarding the financial sustainability of the agreement. It also needed to assess whether the application complied with the statutory requirements and whether there were any procedural irregularities in the way the application was made. Furthermore, the court had to consider whether the proposed variations were necessary and reasonable in the circumstances.

The court found that the application was justified on the grounds that the current financial commitments under the agreement were unsustainable and posed a significant risk to the Territory's budget. The court held that the application complied with the statutory requirements and that there were no procedural irregularities. The proposed variations were deemed necessary and reasonable given the financial constraints. Consequently, the court granted the application for variation of the enterprise agreement, allowing the Territory to implement the necessary changes to ensure the sustainability of its public sector finances.

The final orders included the variation of specific clauses in the ACT Public Sector Health Professional Enterprise Agreement 2023-2026 to reflect the changes that were found to be necessary and reasonable. The court also directed that the variations would take effect from a specified date, providing a clear timeline for the implementation of the changes.

Australian Capital Territory

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Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established