Australian Salaried Medical Officers Federation v Victorian Institute of Forensic Medicine

[2024] FWC 1131

[2024] FWC 1131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Australian Salaried Medical Officers Federation & Anor
v

Victorian Institute of Forensic Medicine

(B2024/403)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 1 MAY 2024

Application for a majority support determination – application granted – determination made

1. The Australian Medical Association (Victoria) Ltd and Australian Salaried Medical Officers Federation (together, the applicants) are seeking to bargain with the Victorian Institute of Forensic Medicine for an enterprise agreement that will cover forensic medical officers and forensic medical registrars, collectively referred to as FMOs in this decision. The FMOs are covered by the Medical Practitioners Award 2020 (Award).

1. On 3 April 2024, the applicants applied under s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination. The respondent has not yet agreed to bargain or initiated bargaining for the proposed agreement.

1. For the reasons that follow, I have decided to grant the application for a majority support determination.

Procedural context

1. Directions were issued for the confidential provision of:

(a)   each email the applicants received from a FMO in which desire is said to be expressed for an enterprise agreement covering their employment with the respondent; and

(b)   the respondent’s list of current employees engaged as FMOs and who are covered by the Award.

1. In the period to 26 April 2024, various enquiries were made jointly and confidentially with the parties in relation to the produced material. As an outcome of these enquiries:

(a)   two FMO emails were excluded from consideration;

(b)   forensic pathology fellows were excluded, by consent, from consideration;

(c) having regard to the number of casual employees in the relevant employee cohort, the parties submitted by consent that the “time determined by the FWC” for the purposes of s 237(2)(a)(i) of the Act should be the period from 1 January 2024 until 23 April 2024. I am satisfied that the time determined by the parties is appropriate and therefore fix the time accordingly;[1] and

(d)   a revised list of current employees was produced confidentially by the respondent on 24 April 2024.

1. On 26 April 2024, correspondence was sent to the parties by the Commission which provided, inter alia, as follows:

“The following updated preliminary observations are made:

·A total of 21 FMO emails have been provided confidentially by the applicants to the Commission as at today’s date. Of those emails, two have been excluded from consideration as explained below:

o10 FMO emails were confidentially filed on 10 April 2024 – one of these emails has been excluded from consideration as an outcome of “preliminary issue 1.”

o5 FMO emails were confidentially filed on 22 April 2024.

o2 FMO emails were confidentially filed later on 22 April 2024 – one email pertains to the “seventh employee” and has been excluded from consideration.

o3 FMO emails were confidentially filed on 23 April 2024.

o1 FMO email was confidentially filed on 24 April 2024 but is dated 23 April 2024 and therefore falls within the relevant “time” agreed between the parties for the purposes of s 237(2)(a)(i) of the Fair Work Act 2009 (Cth).

·There are 19 FMOs on the employer’s revised list.

·Of the 19 FMO emails within consideration, there are 14 emails before the Commission from FMOs who appear on the employer’s list, indicating a desire to bargain.

Accordingly, it appears that a majority of the employees who are employed by VIFM at the relevant “time” (being 1 January 2024 to 23 April 2024) and who will be covered by the proposed agreement, want to bargain with VIFM.”

1. A case management conference was convened before the Commission on 30 April 2024 at which the applicants sought that a determination be made. The parties did not seek to address any other matter under s 237(2) of the Act. Accordingly, I consider it appropriate to determine the application on the material before the Commission.

Statutory framework

1. Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single-enterprise agreement if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). Section 237(2) provides:

(2)      The FWC must be satisfied that:

(a)       a majority of the employees:

(i)who are employed by the employer or employers at a time determined by the FWC; and

(ii)       who will be covered by the agreement;

want to bargain; and

(b)the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c)that the group of employees who will be covered by the agreement was fairly chosen; and

(d)      it is reasonable in all the circumstances to make the determination.

1. With respect to the consideration in s 237(2)(a) of the Act, s 237(3) provides that the Commission may “work out” whether a majority of employees want to bargain by using any method it considers appropriate.

1. Further, if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct under s 237(3A) of the Act.

1. I am satisfied for the purposes of s 237(1)(a) that a valid application for a majority support determination has been made under s 236. I turn now to the considerations in s 237(2) of the Act.

Is there majority support for bargaining?

1. I am satisfied for the purposes of s 237(2)(a) that a majority of the FMOs employed by the respondent at the relevant “time,” being the period 1 January 2024 to 23 April 2024, and who will be covered by the proposed agreement – being 14 of 19 – want to bargain with the respondent for an enterprise agreement. The emails produced by the applicants to the Commission bears this out.

Has the respondent agreed to bargain or initiated bargaining?

1. I am satisfied for the purposes of s 237(2)(b), having regard to the position expressed by the respondent to the Commission, that it has not yet agreed to bargain or initiated bargaining.

Was the group of employees fairly chosen?

1. The proposed agreement will not cover all of the employees of the respondent. The respondent’s medical workforce is divided into two discrete groups: forensic pathology and forensic medicine. Each of these two groups is divided into subgroups comprising of specialists and non-specialists.

1. The forensic pathology group is comprised of forensic pathologists and forensic pathology registrars. Forensic medicine is comprised of forensic medical specialists, forensic medical officers and forensic medical registrars. 

1. Forensic pathologists and forensic medical specialists are covered by the Victorian Institute of Forensic Medicine (Specialist Forensic Pathologists and Physicians) Agreement 2023-2027.[2]

1. The forensic medical officers and forensic medical registrars that are the subject of this application are not covered by an enterprise agreement and rather, are covered by the Award.

1. It is not in dispute, and I accept that the forensic medical officers and forensic medical registrars (who are collectively referred to as FMOs in this decision, see [1] above) form a discrete group of employees. I am satisfied that the group of employees is operationally distinct and that the group was fairly chosen for the purposes of ss 237(2)(c) and 237(3A).

Is it reasonable in all the circumstances to make the determination?

1. The parties have not identified any matters which give rise to concerns as to the reasonableness of making the determination, nor are any such concerns apparent on the materials before me. I am satisfied that it is reasonable in all the circumstances to make the determination for the purposes of s 237(2)(d).

Conclusion

1. Being satisfied that the matters in s 237 of the Act have been met, the application for a majority support determination must be granted.

1. The determination is made and is issued separately in PR774390. In accordance with s 237(4) of the Act, the determination will come into operation today.

DEPUTY PRESIDENT

[1] See Kantfield Pty Ltd v AWU[2016] FWCFB 8372; 266 IR 1 at [35]-[37]; National Union of Workers v Lovisa Pty Limited[2019] FWC 2571 at [30]-[32]

[2] AE523564; [2024] FWCA 630

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<PR774389>