Royal Flying Doctor Service Of Australia (South Eastern Section) T/A Royal Flying Doctor Service Of Australia (South Eastern Section)

[2023] FWCA 2854

[2023] FWCA 2854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Royal Flying Doctor Service Of Australia (South Eastern Section) T/A Royal Flying Doctor Service Of Australia (South Eastern Section)

(AG2023/2953)

FLYING DOCTOR SERVICE OF AUSTRALIA (SOUTH EASTERN SECTION) MEDICAL PRACTITIONERS AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 6 SEPTEMBER 2023

Application for variation of the Royal Flying Doctor Service of Australia (South Eastern Section) Medical Practitioners Agreement 2023

1. The Royal Flying Doctor Services of Australia (South Eastern Section) has made an application to vary the terms of the Royal Flying Doctor Service of Australia (South Eastern Section) Medical Practitioners Agreement 2023 (the Agreement). The application has been made pursuant to sections 217 and 218A of the Fair Work Act 2009 (Cth) (FW Act) to vary Annexure 1 and subclause 26.1(a) of the Agreement respectively.

1. The Agreement was approved by the Commission on 17 August 2023.[1] At paragraph [5] of the approval decision I noted as follows:

[5] I note that prior to this this decision being issued the Applicant identified with the Commission what it describes as an obvious error in clause 26.1(a) and an ambiguity or uncertainty in Annexure 1 Remuneration. The Applicant has foreshadowed proposed variations to those provisions under s.218A and s.217 of the Act respectively once the Agreement is approved.

1. Clause 26.1(a) of the Agreement currently reads:

26.1 Overtime will occur when:

(a) a full-time Day Worker works more than:

(i) 20 shifts in a 28 day cycle; or

152 ordinary hours plus the 40 reasonable additional hours compensated by the Base Salary (i.e. a total of 192 hours) in a 28 day cycle; or

(i) when a Shift Overrun occurs.

1. The Applicant submitted that there is an obvious error in the sub-clause as a result of a formatting error in the document and that the clause is plainly intended to read as follows:

26.1 Overtime will occur when:

(a) a full-time Day Worker works more than:

(i) 20 shifts in a 28 day cycle; or
(ii) 152 ordinary hours plus the 40 reasonable additional hours compensated by the Base Salary (i.e. a total of 192 hours) in a 28 day cycle; or
(iii) when a Shift Overrun occurs.

1. The Applicant submitted that the current wording is an obvious error having regard to the structure of similar provisions within the Agreement, including sub-clause 35.1(a) (which is the equivalent provision as applicable to shift workers), as well as sub-clauses 26.1(b) and 35.1(b) (the equivalent provisions as applicable to part-time day workers and shift workers).

1. Annexure 1 – Remuneration, of the Agreement refers to various wage increases, including a wage increase of 3% effective from 1 July 2023 in the tables that appear in that annexure. The Applicant submitted that this was inconsistent with the position agreed to between the parties during the bargaining process and is also inconsistent with the (correctly stated) monetary value of remuneration payable from 1 July 2023 which is also set out in the tables in Annexure 1. The application is that the references to a 3% wage increase effective from 1 July 2023, where they appear the tables in Annexure 1 be removed and that they be replaced with a reference to a 2.5% wage increase from 1 July 2023. It is not proposed that the monetary value of the remuneration set out in the various tables be changed.

1. The matters referred to above were raised with the employee bargaining representatives as well as the Commission during the approval process. The Applicant obtained the consent of those bargaining representatives to the proposed variation to Annexure 1 and provided copies of correspondence to the Commission confirming that to be the case. In relation to the proposed variation of clause 26.1(a) no objection was received from any employee bargaining representative to the proposed variation. In both cases the Commission provided the parties with a further opportunity to make submissions after the application was filed. No further submissions were received.

1. Section 218A provides:

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):

(a) on its own initiative; or
(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. I am satisfied that there is an obvious error in the formatting of clause 26.1(a) of the Agreement. I note in particular the terms of clause 35.1(a) which is the corresponding provision relating to shift workers, and which is in a similar form to that now proposed by the Applicant for clause 26.1(a). I propose to vary the terms of clause 26.1(a) in the terms sought.

1. Section 217 provides:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

1. The current provisions of Annexure 1 contain an ambiguity or uncertainty in that the percentage wage adjustments for the period 1 July 2023 do not coincide with the stated monetary value of the remuneration to be paid on and from 1 July 2023. Having regard to the submissions received, I am satisfied that the intended percentage increase for that period should be 2.5% rather than 3%. I consider it appropriate to remove the ambiguity or uncertainty from Annexure 1 in the terms sought by the Applicant. I note that in approving that variation employees will not be prejudiced given that the stated monetary value of the remuneration will remain unchanged.

1. Orders reflecting these variations will accompany this decision. In each case the variation will operate from the date of approval of the Agreement being 17 August 2023.

DEPUTY PRESIDENT

[1] [2023] FWCA 2608.

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