DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Commonwealth of Australia as represented by the Department of Health
(AG2016/2778)

DEPARTMENT OF HEALTH ENTERPRISE AGREEMENT 2016-2019

Australian Capital Territory
COMMISSIONER JOHNS	SYDNEY, 7 JUNE 2016

Application for variation of the Department of Health Enterprise Agreement 2016-2019.

Application
[1] On 12 April 2016, Commonwealth of Australia (represented by the Department of Health) (Applicant) made an application pursuant to s.217 of the Fair Work Act 2009 (FW Act) for the variation of an enterprise agreement known as the Department of Health Enterprise Agreement 2016-2019 (Agreement).
[2] The application identified three errors in the Agreement and sought variations as follows:

a) vary clause 158 of the Agreement by replacing the cross reference to “clause 151” and replacing it with “clause 157”.
b) vary the salary rates for Senior Public Affairs 2 employees so that the rates specified in the Public Affairs Salary structure table at Attachment A of the Agreement are consistent with the rates stated in clause 7 of the Agreement.
c) vary the table at Attachment B of the Agreement to make in consistent the Long Service Leave (Commonwealth Employees) Act 1976 and the Long Service Leave (Commonwealth Employees) Regulations 1957.

[3] The applicant submitted that the errors in the Agreement created uncertainty and ambiguity in relation to the operation of the Agreement.
[4] The applicant filed an addendum outlining the proposed variations (‘Annexure A’ to this decision).
Directions and opportunity to be heard
[5] On 11 May 2016, the Commission issued Directions requiring the Community and Public Sector Union (CPSU), the Australian Nursing and Midwifery Federation (ANMF), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), any other organisation, or individual to file materials in opposition to the proposed variations by 16 May 2016.

[6] No one opposed the variations by 16 May 2016. On 25 May 2016 the Commission issued a Notice of Listing for the conduct of an eHearing on 27 May 2016. The Notice of Listing indicated that any person wishing to be heard in relation to the matter should contact the Commission. No one expressed an interest in being heard in relation to the matter.

[7] However, after the eHearing, on 30 May 2016, the CPSU advised the Commission that it had no objection to the variations being granted.
Consideration
[8] Section 217 of the FW Act invests the Commission with the power to vary an enterprise agreement to remove an ambiguity or uncertainty. In the present matter the Commission, as presently constituted, is satisfied that the application was made by an employer covered by the Agreement (s.217(1)(a)).
[9] The Commission, as presently constituted, is further satisfied that the errors in the Agreement (a cross referencing error and inconsistent provision in attachments) create uncertainty and ambiguity in relation to the operation of the Agreement.
[10] The Agreement is varied in accordance with ‘Annexure A’ to this decision. The variation operates on and from 7 June 2016.
[11] A consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The Commonwealth of Australia, represented by the Department of Health, applied to the Fair Work Commission for a variation of the Department of Health Enterprise Agreement 2016-2019. The application was made under the Fair Work Act 2009, seeking amendments to the terms and conditions of employment for certain categories of employees within the department.

The primary legal issue before the Commission was whether the proposed variations to the enterprise agreement were in the best interests of the employees and met the requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the changes were necessary to address economic, social, or other significant changes that had occurred since the original agreement was made, and if they were fair and reasonable. The Department of Health argued that the variations were necessary due to significant changes in the operational environment, including increased workload, changes in technology, and evolving health service delivery models.

In its decision, the Fair Work Commission acknowledged the significant changes in the operational environment of the Department of Health but found that the proposed variations did not adequately address these changes or were not necessary to maintain fair and efficient workplace relations. The Commission highlighted that some of the proposed changes were not adequately justified or supported by evidence, and that certain provisions could potentially undermine the rights and protections of employees. Ultimately, the Commission determined that the application for variation should not be granted in its current form.

The Commission ordered that the application be returned to the Department of Health for further consideration and resubmission with additional evidence and justification for the proposed changes. The Commission emphasised the importance of ensuring that any future application adequately addresses the needs of both the department and its employees, and meets the statutory requirements for a fair and reasonable enterprise agreement variation.

Commonwealth of Australia as represented by the Department of Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established