Australian Health Practitioner Regulation Agency

[2013] FWCA 4155

[2013] FWCA 4155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Health Practitioner Regulation Agency
(AG2013/5084)

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY ENTERPRISE AGREEMENT (WA) 2013-2014

Clerical industry
VICE PRESIDENT WATSON	SYDNEY, 26 JUNE 2013

Application for approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (WA) 2013-2014 - Better Off Overall Test - comparison with relevant modern award - Fair Work Act 2009 - ss. 54, 172, 183, 185, 186, 187, 188, 193, 201.

Introduction

[1] This decision concerns an application for approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (WA) 2013-2014 (the Agreement) made by the Australian Health Practitioner Regulation Agency (AHPRA). The application was made on 21 February 2013, but was held over pending the outcome of other proceedings before me to determine whether AHPRA is a national system employer, and is therefore covered by the provisions of the Fair Work Act 2009 (the Act).

[2] Following the determination 1 of the other proceedings and the finding that AHPRA is a national system employer, directions were issued in this matter and, with consent of the parties, I decided to determine the matter on the papers.

[3] The agreement is a single enterprise agreement within the meaning of s.172(2) of the Act. It was made on 8 February 2013. The agreement covers employees of AHPRA in Western Australia who fall within the classification structure in Appendix 1 of the agreement. These classifications range from general support positions to officers and technical specialists.

[4] The Community and Public Sector Union (CPSU) was a bargaining representative for employees to be covered by the agreement. However, it objects to the approval of the agreement as it says the agreement does not meet the Better Off Overall Test (BOOT).

[5] There were four AHPRA employees appointed as bargaining representatives in addition to the CPSU. None of these other bargaining representatives have put submissions in this matter.

The Legislation

[6] There are several steps to approval of an enterprise agreement under the Act. Section 186 sets out the general requirements for when the Fair Work Commission must approve an enterprise agreement. These requirements include that the agreement has been genuinely agreed to by the employees it will cover, that it not contravene the National Employment Standards, contains no unlawful or discriminatory terms and that it passes the BOOT. The BOOT is set out in s.193:

“(1)  An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

The BOOT

[7] The CPSU submits that AHPRA has not nominated the appropriate modern award as a point of comparison for the BOOT. In its declaration in support of the agreement filed with the application, AHPRA nominates the Clerks - Private Sector Award 2010 (Clerks Award) as being the award which would cover employees subject to the agreement if no agreement were in place.

[8] The CPSU submits that AHPRA has been found to be a public sector employer, at least within Queensland, by a Full Bench of the Commission, 2 and as such the appropriate award is the State Government Agencies Administration Award 2010 (State Government Award). The CPSU further submits that the Government Officers Salaries Allowances and Conditions Award 1989 (GOSAC Award) is a pre-reform NAPSA which applied to employees to be covered by the agreement, but AHPRA has not nominated this award in its employer declaration. The CPSU submits that the GOSAC Award should be considered in determining whether AHPRA employees will be better off overall under the enterprise agreement.

[9] The CPSU also objects to Clause 30 of the agreement, which deals with increases to employees’ salaries based on performance appraisals. The CPSU submits that the performance expectations set by this clause do not take into account the gradual acquisition of skill and experience of staff, nor the possibility that employee contributions can be offset by other organisational factors. The CPSU submits that Clause 30 of the agreement will operate to the detriment of the employees compared to the corresponding clause in the GOSAC Award.

[10] The redundancy and severance pay entitlements under the agreement are in excess of the minimum requirements prescribed in the Act. The CPSU submits that this is considerably less than what employees previously employed in the public service would have been entitled to.

[11] AHPRA accepts that following the finding of the Full Bench, the State Government Award is the relevant modern award for the purposes of the BOOT. It submits that the agreement clearly passes the BOOT if that award is considered. It submits that the GOSAC Award is not a NAPSA without explaining the basis of the submission.

[12] The submissions of the CPSU reflect a misconception. The BOOT depends on a comparison with the relevant modern award, The existence of any NAPSA can only be relevant insofar as transitional provisions of the modern award require a consideration of the terms of any applicable NAPSA. The CPSU has not sought to address the BOOT in this way. Rather, it has inferred that the agreement must pass the BOOT in relation to the GOSAC Award. There is no basis for such an approach. It does not contend that the agreement fails the BOOT when compared to the State Government Award. I dismiss the CPSU contentions.

Conclusions

[13] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The CPSU has given notice pursuant to s.183 of the Act that it wants the agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[14] The Agreement is approved and, in accordance with s.54(1)(a), will operate from 4 July 2013. The nominal expiry date of the Agreement is 30 June 2014.

VICE PRESIDENT WATSON

 1   [2013] FWC 3256

 2   CPSU, the Community and Public Sector Union; Civil Service Association of Western Australia Incorporated v Australian Health Practitioners Regulation Agency [2013] FWCFB 661

<Price code J, AE402034  PR538256>