Royal Flying Doctor Service of Australia (Western Operations)

[2024] FWCA 4200

[2024] FWCA 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Royal Flying Doctor Service of Australia (Western Operations)

(AG2024/3944)

ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (WESTERN OPERATIONS) MEDICAL PRACTITIONER ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER LIM	PERTH, 28 NOVEMBER 2024

Application for approval of the Royal Flying Doctor Service of Australia (Western Operations) Medical Practitioner Enterprise Agreement 2023.

1. Royal Flying Doctor Service of Australia (Western Operations) (the Applicant) has applied for the approval of an enterprise agreement known as the Application for approval of the Royal Flying Doctor Service of Australia (Western Operations) Medical Practitioner Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. The below clauses in the Agreement appear to be potentially inconsistent with the National Employment Standards (NES):

(a)Casual conversion: Clause 16.5 appears to provide that an eligible casual employee can request to convert to permanent employment from 21 days after their 12-month anniversary. This appears inconsistent with s 66B of the Act which provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

(b)Family and domestic violence leave: Clause 51 appears to provide that employees are entitled to unpaid family and domestic violence leave in accordance with the NES, inconsistent with s 106A(1) of the Act which allows up to 10 days of paid leave.

(c)Withholding monies at termination: Clause 39.4 appears to provide that where the employee fails to give the prescribed notice, any pay due may be forfeited to the extent that the notice given falls short of the prescribed notice. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES.

1. However, noting the undertaking provided the Applicant, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and NES.

1. The Australian Salaried Medical Officers’ Federation (WA) (the AMA WA), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover them. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the AMA WA is covered by the Agreement.

1. The Agreement was approved on 28 November 2024 and, in accordance with s 54, will operate from 5 December 2024. The nominal expiry date of the Agreement is 30 September 2026.

Variation

1. In the course of approving the Agreement, the AMA WA applied under s 218A to correct or amend obvious errors, defects or irregularities in the Agreement. The AMA WA seeks the following amendments to the Agreement:

(a)Where the Agreement references the “AMA”, for that to be corrected to “AMA WA”. The clauses to be varied are Clause 2.3; Clause 3.4; Clause 5; Clause 40; and Clause 59.

(b)In Clause 5 of the Agreement the “AMA/Association” is defined as the “Australian Medical Association (Western Australia)”. The correct entity is the “Australian Medical Association (WA) Inc.”.

1. As has been noted in recent decisions of the Commission,[1] s 218A of the Act is akin to the slip rule found in s 602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Before an amendment under s 218A can be made, I must be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I satisfied that the incorrect references to the AMA WA’s name are obvious errors. Noting that the Applicant did not object to the amendments sought, I am satisfied that it is appropriate to amend the clauses identified in [9].

Order

1. I order pursuant to s 281A of the Act that the Agreement be varied to correct the obvious errors as follows:

(a)In Clause 2.3; Clause 3.4; Clause 5; Clause 40; and Clause 59, “AMA” is to be replaced with “AMA WA”.

(b)In Clause 5, the definition of “AMA/Association” is to be replaced with “Australian Medical Association (WA) Inc.”

1. This variation will operate from the date the Agreement commences, being 5 December 2024.

COMMISSIONER

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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