Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service South Australia & Northern Territory

[2024] FWCA 4107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service South Australia & Northern Territory

(AG2024/4418)

ROYAL FLYING DOCTOR SERVICE CENTRAL OPERATIONS AEROMEDICAL NURSES AND MIDWIVES (AUSTRALIAN NURSING AND MIDWIFERY FEDERATION) AGREEMENT 2022 (ADELAIDE, ALICE SPRINGS, DARWIN & PORT AUGUSTA)

(ODN AG2023/3813) [AE526485]

Airline operations
COMMISSIONER PLATT	ADELAIDE, 29 NOVEMBER 2024

Application for variation of the Royal Flying Doctor Service Central Operations Aeromedical Nurses and Midwives (Australian Nursing and Midwifery Federation) Agreement 2022 (Adelaide, Alice Springs, Darwin & Port Augusta)

The Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service South Australia & Northern Territory (the Applicant) has made an application pursuant to s.218(2)(b) of the Fair Work Act 2009 (the Act), to vary the Royal Flying Doctor Service Central Operations Aeromedical Nurses and Midwives (Australian Nursing and Midwifery Federation) Agreement 2022 (Adelaide, Alice Springs, Darwin & Port Augusta) (the Agreement) to correct or amend an obvious error, defect or irregularity.

The Agreement was approved by the Commission on 23 October 2024 and commenced operation on 30 October 2024.[1] The Applicant is the Employer covered by the Agreement. The Australian Nursing and Midwifery Federation (ANMF) is also covered by the Agreement.

The Applicant seeks the following variations to the Agreement:

· Clause 7.4.1 – Meal Breaks

The reference to Clause 6.8 be varied to refer to ‘Clause 6.9 (Flight Nurses – Meal Breaks)’.

· Schedule 1: Flight Nurses and Flight Nurse Midwives

The Retention Allowance for a Step 4 – Flight Nurse Midwife Adelaide and Darwin (Full Time and Part Time on or after 1 July 2024) be varied from $5,743.10 to ‘$5,473.10’.

The Applicant submits the variation to Clause 7.4.1 is a cross-referencing error which is obvious in nature and that the variation of Schedule 1 is an obvious error as the allowance is intended to represent 5% of the Base Salary for a Step 4 – Flight Midwife Adelaide and Darwin. The Applicant also submits the variation to Schedule 1 is consistent with the information contained in Clause 4.6 and does not impact on genuine agreement.

I have sought the views of the Bargaining Representatives and the ANMF. The ANMF did not express any view in relation to the application. Accordingly, I have determined the matter based on the material filed.

The errors, which were not identified until after the Agreement was approved, are errors of substance and would therefore fall within the scope of s.218A(1).

My determination to vary the Agreement is in accordance with the requirements of s.218A(2)(b) of the Act. The variation sought will operate from 29 November 2024.

COMMISSIONER

[1] [2024] FWCA 3693.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Commissioner Platt, has addressed an application by the Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service South Australia & Northern Territory (the Applicant) to modify the Royal Flying Doctor Service Central Operations Aeromedical Nurses and Midwives (Australian Nursing and Midwifery Federation) Agreement 2022 (Adelaide, Alice Springs, Darwin & Port Augusta) (the Agreement). The Applicant sought to correct two apparent errors in the Agreement, which had been approved by the Commission and commenced on 30 October 2024. The Australian Nursing and Midwifery Federation (ANMF) was also a party to the Agreement, although it did not express a view on the application.

The legal issues at hand revolved around the authority of the Commission to alter the Agreement under section 218A of the Fair Work Act 2009 to rectify errors that were not detected until after the Agreement had been approved. The Applicant argued that the errors were obvious and did not affect the genuineness of the agreement, thus qualifying for variation under the Act. The first error was a cross-referencing mistake in Clause 7.4.1, and the second was a miscalculation in the retention allowance for a Step 4 – Flight Nurse Midwife Adelaide and Darwin in Schedule 1.

In deciding the application, Commissioner Platt examined the nature of the errors and their impact on the Agreement. The Commissioner found that the errors were indeed of substance and fell within the scope of section 218A(1) of the Act. Given the Applicant's submissions that the errors did not undermine the genuineness of the agreement, and considering the ANMF's lack of objection, the Commissioner ruled that the variation sought was permissible under section 218A(2)(b) of the Act. Consequently, the Commission approved the variations, which were to take effect from 29 November 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established