Royal Rehab

[2025] FWCA 292

[2025] FWCA 292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Royal Rehab

(AG2025/38)

ROYAL REHAB (NON-DECLARED) AFFILIATED HEALTH ORGANISATION & AUSTRALIAN SALARIED MEDICAL OFFICERS FEDERATION (ASMOF) STAFF SPECIALIST AGREEMENT 2024

Health and welfare services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 23 JANUARY 2025

Application for variation of the Royal Rehab (Non-Declared) Affiliated Health Organisation & Australian Salaried Medical Officers Federation (ASMOF) Staff Specialist Agreement 2024

Introduction

1. In a Decision[1] issued earlier today, I approved the Royal Rehab (Non-Declared) Affiliated Health Organisation & Australian Salaried Medical Officers Federation (ASMOF) Staff Specialist Agreement 2024 (the Agreement). The Agreement operates from 30 January 2025 and has a nominal expiry date of the Agreement of 23 January 2028. The Agreement covers the Australian Salaried Medical Officers Federation (ASMOF) being a bargaining representative for the Agreement. There were no other employee bargaining representatives in relation to the Agreement.

1. Royal Rehab (the Employer) has made an application pursuant to s.218A of the Act to correct the following errors in the Agreement:

1. Clause 4 – Normal Duties, Part A – General, subclause (a)(i) incorrectly references staff specialists working ‘not less than 38 hours per week’ instead of ‘not less than 40 hours per week’.

2. Clause 5 – Salary, subclause (f) incorrectly reflects the calculation for penalty rates as being 1/38th of the weekly rate rather than 1/40th of the weekly rate to align with the State Award.

3. The salary rates in Part B – Monetary Rates, Schedule 1: Staff Specialist Salary Rates of the proposed Agreement incorrectly reflect unadjusted (lower) pay rates, rather than the current pay rates under the State Award.

Evidence and Submissions

1. The Employer is an affiliated health organisation (AHO) as defined in section 13 of the Health Services Act 1997 (NSW). The effect of this legislation is that the Employer is a not-for-profit hospital treated as part of the NSW public health system and receives government funding conditional on it complying with the NSW Health State Awards, relevantly to this application the Staff Specialists (State) Award 2022 (the State Award).

1. In support of the application, the Employer has provided a statutory declaration by Sonya Kral, Human Resources Manager, dated 17 January 2025. Mr Kral declared that she attended all enterprise bargaining meetings in relation to the Agreement and that all negotiations with the staff specialists and ASMOF were on the basis that the hours of work, current rostering arrangements and the pay rates would remain aligned with the State Award as required by the funding arrangements. Mr Kral explained that due to an administrative error, unadjusted payroll details were included in the copy of the Agreement that was distributed for the Access Period, so the hours of work and pay rates were incorrect. The error was not identified until after the vote on the Agreement concluded.

1. Mr Kral confirmed that Staff Specialists work a 40 hour work, consistent with clause 4 - Normal Duties of the State Award. The rates of pay under the State Award take into account the hours of work. Staff Specialists are paid substantially above the rates of pay in the Medical Practitioners Award 2020 and are not required to work overtime as a matter of practice. Where overtime is required, this is managed under the Health Staff Specialists Determination 2015. Ms Kral said that at all the bargaining meetings that she attended, the Employer and ASMOF were in agreement that the weekly full time hours for a Staff Specialist were 40 hours, and that this was reasonable given the salary and special allowance paid to the Staff Specialists.

1. The Employer submitted that the requirement that employees will work not less than 40 hours per week is reasonable for staff specialists taking into consideration the following matters which are relevant to s.62(3) of the Act:

(a)Considering the needs of the workplace or enterprise, it has historically been the custom and practice that staff specialists work a 40-hour week, as this rostering pattern aligns with the State Award and the State Award salary rates are based on a 40-hour work week. These additional two hours rostered per week above 38 hours means staff specialists can more adequately cover the patient load without the uncertainty of the need for overtime. The State Award and relevant determinations provide significant incentive for staff and the Employer to avoid the need for Staff Specialists to work overtime beyond the 40-hour week and the Agreement mirroring the State Award assists the workplace with certainty in payroll practices;

(b)there is no risk to employee health and safety in Staff Specialists being required to work 40 hours per week. It has been historical practice for Staff Specialists to work 40 hours per week, as is the case in the public health system and an additional two hours per week do not create concerns about fatigue or decision making for employees of this seniority and training;

(c)Staff Specialists receive a level of remuneration that reflects an expectation of working the additional hours. The annual remuneration under the Agreement is set at the equivalent level remuneration in the State Award which is predicated on Staff Specialists working the hours set out in the State Award, being 40 hours per week. While previous historical agreements may have referred to a 38-hour week, the arrangement for receipt of the full State Award salary has required a 40-hour week to be worked as agreed with the Staff Specialists. The State Award salary is specifically remunerated for working a 40-hour work week and the level of remuneration is carefully reviewed and gazetted upon each change by NSW Health based on the expectations of the position including the working of additional hours;

(d)Staff specialists are notified at the commencement of employment about working hour expectations in order to receive the full State Award salary, and historically there has been no objection to a 40-hour work week as it matches the public hospital conditions and other AHOs;

(e)Staff Specialists are notified of the requirement to work a 40-hour week throughout recruitment. Staff Specialists are invited to note any objection to their proposed rosters, which are fixed unless changed by agreement. No objection has been raised by any Staff Specialists about fixed reasonable additional hours resulting in a 40-hour weekly roster;

(f)In relation to the usual patterns of work in the industry, the medical industry is generally reliant on significant overtime and on-call requirements. Being a rehabilitation hospital, the Employer’s staff specialists do not typically face emergent situations, but client demands and specialised knowledge and care make reasonable additional hours inevitable and reflecting the State Award ensures that the reasonable additional hours are in keeping with patterns of work for staff specialists in the public system, and ensures easy application of the terms and conditions in the State Award and applicable determinations, including treatment of on-call and overtime work;

(g)Considering the nature of the employees’ role and level of responsibility, a 40-hour working week which fixes reasonable additional hours provides a level of certainty and consistency for staff specialists in rostering arrangements and is beneficial for the organisation, its patients and staff. It allows for workloads to be appropriately shared, ensures staff specialists have a level of control over when they are working and reflects the level of responsibility staff specialists have for the care of the Employer’s patients. It allows for easier scheduling of patient consultations, care meetings and workflow which in turn increases efficiency and reduces the need for further additional hours to be worked on a regular basis over and above 40 hours per week;

(h)Given the quantum of the additional hours required, being two hours per week for a senior role with significant remuneration, an employee’s personal circumstances, including family responsibilities would be taken into account and dealt with by way of pro-rata salary where fewer hours were required to be worked.

1. In order to correctly reflect the working arrangements negotiated, and the requirements of the State Award, the Employer has sought the following amendments to the Agreement to rectify this error:

1. In clause 4 – Normal Duties, Part A – General, subclause (a)(i), replace the words, ‘Not less than 38 hours per week’ with the words, ‘Not less than 40 hours per week’;

2. In clause 5 – Salary, subclause (f), replace the words, ‘The hourly rate for calculation of penalty rates will be 1/38th of the weekly rate’ with the words, ‘The hourly rate for calculation of penalty rates will be 1/40th of the weekly rate’.

3. In Part B – Monetary Rates, Schedule 1: Staff Specialist Salary Rates, delete the salary rates table and replace it with the following salary rates:

   SCHEDULE 1: STAFF SPECIALISTS SALARY RATES

   Staff Specialist Rates from First Full Pay Period on or after 1/07/2023    $ per annum

   Level 1, Year 1    $186,241
   Level 1, Year 2    $197,132
   Level 1, Year 3    $208,017
   Level 1, Year 4    $218,934
   Level 1, Year 5    $229,825
   Senior Staff Specialist, Level 1         $251,618
   Postgraduate fellow    $216,339

1. The Employer submits that the amended rates of pay are the current rates of pay set out in the State Award.

1. ASMOF has advised the Commission that it consents to the amendments sought by the Employer.

Consideration

1. Section 218A of the Act provides:

(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 have considered the evidence and submissions of the Employer which are not contested by ASMOF. On the basis of that material, I make the following findings:

• The Employer is required, as a condition of its funding from the NSW Government, to comply with the State Award.

• Prior to the commencement of the access period, the bargaining representatives agreed in principle to the terms of an enterprise agreement which included the rates of pay and hours of week provided in the State Award.

• The hours of work provisions are not inconsistent with s.62 of the Act, which deals with maximum weekly hours of work.

• Due to an administrative error, unadjusted payroll details were included in the copy of the Agreement that was distributed for the access period, so the hours of work and pay rates were incorrect. The error was not identified until after the vote on the Agreement concluded.

• The amendments sought replicate the provisions of the State Award.

1. Based upon these findings, I conclude that the variations sought by the Employer are in relation to obvious errors. The proposed variations do not disturb any of my findings in relation to the approval of the Agreement and the employees will not be disadvantaged by the proposed variations. In the circumstances, it is appropriate to vary the Agreement pursuant to s.218A(2)(b)(i) in the terms sought by the Employer.

1. The consolidated version of the Agreement, as varied, is attached to this decision. The variation operates from 23 January 2025.

DEPUTY PRESIDENT

[1] [2025] FWCA 289

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