Royal Rehab
[2025] FWCA 289
•23 JANUARY 2025
| [2025] FWCA 289 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Royal Rehab
(AG2024/4876)
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 approval of the Royal Rehab (Non-Declared) Affiliated Health Organisation & Australian Salaried Medical Officers Federation (ASMOF) Staff Specialist Agreement 2024
Introduction
Royal Rehab (the Employer) has made an application for approval of an enterprise agreement known as the Royal Rehab (Non-Declared) Affiliated Health Organisation & Australian Salaried Medical Officers Federation (ASMOF) Staff Specialist Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Medical Practitioners Award 2020 (Medical Practitioners Award).
Incorrect rates of pay and hours of work
The Employer is an affiliated health organisation 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).
The Employer advised that due to an administrative error, unadjusted payroll details were included in the copy of the proposed Agreement that was distributed to employees for the Access Period, so the hours of work and pay rates were incorrect. These errors were not identified until after the vote on the proposed Agreement concluded. In a statutory declaration provided to the Commission by Sonya Kral, Human Resources Manager, dated 17 January 2025,[1] these errors were identified as:
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’.
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.
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.
The Employer made an application pursuant to s.218A of the Act to correct these errors.[2] As s.218A permits the Commission to vary ‘an enterprise agreement’, I cannot determine the s.218A application until the Agreement is approved. If I am satisfied that each of the requirements of ss.186 and 187 are met with respect to this application for approval, I am required by s.186(1) to approve the Agreement which contains the errors and it is this Agreement that will be published with this Decision. I propose to deal with the s.218A application immediately following the issuing of this Decision which may result in changes to the Agreement provisions referred to above. The Employer and employees covered by the Agreement should therefore read my Decision with respect to AG2025/38 in conjunction with his Decision to ensure that they are accessing the version of the Agreement which is in operation.
Deductions
Clause 28(b)(v) of the Agreement provides that where an employee's remaining period of service does not permit the full recovery of any overpayment to be achieved on the fortnightly basis prescribed in subclause (b)(iii), the employer has the right to deduct any balance of such overpayment from monies owing to the employee on the employee's date of termination, resignation, or retirement, as the case may be. Clause 28(b) does not appear to limit the source of monies which may be deducted. This clause appears to permit the employer to withhold monies owing to the employee under the National Employment Standards (NES) (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 33 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Annualised Salaries
Clause 5(g) of the Agreement provides for annualised salaries as full compensation for all aspects and hours of work except as provided for elsewhere in the Agreement and other relevant industrial instruments. It is not clear if these salaries provided are in satisfaction of wages, allowances, overtime and/or other penalties and entitlements.
The Employer submitted that Staff Specialists are salaried medical officers who receive an annual salary, inclusive of a 17.4% special allowance, designed to cover all minimum wages, overtime, and allowances. The salary accounts for reasonable on-call and recall duties pursuant to clause 6 of the Staff Specialist Determination 2015. The Employer further submitted that while Staff Specialists rarely work overtime, weekends, or public holidays due to the hospital’s focus on rehabilitation, the Agreement provides for additional entitlements, including shift penalties and allowances for such work where applicable. The Employer also noted that the employees benefit from five weeks of annual leave, annual leave loading of 17.5% on four weeks, and processes under the Determination to address abnormal working hours if they occur.
Attempted Reconciliation Clause
The Agreement at Clause 5A provides that during the life of the Agreement, the base rate of pay for employees covered by the Agreement will not be less than the base rate of pay that would be payable to the employee under the Medical Practitioners Award, as amended from time to time. Should employees be paid the same as the Award, it is unclear how they will be better off overall for the purposes of s.193 of the Act.
The Employer submitted that the proposed Agreement aligns with the State Award as required for affiliated health organisations, offering pay rates significantly higher than those in the Medical Practitioners Award. Clause 5A ensures that any increases in the State Award are reflected in the Agreement, ensuring employees covered by it receive higher pay than the Medical Practitioners Award. The Employer also submitted that to comply with s.206 of the Act, the base rate of pay will not be less than the Medical Practitioners Award. Operationally, Staff Specialists work no more than 40 hours per week, with minimal on-call duties, and are paid above Medical Practitioners Award rates. The Employer further noted that the provisions of the Agreement, including higher salaries, special allowances, additional leave, and leave loading, ensure employees are better off overall.
Overtime
The Agreement appears to be silent on overtime. Clause 20 of the Medical Practitioners Award provides that all hours worked in excess of 38 hours is overtime paid at Monday-Saturday: 150% (first two hours) and 200% (thereafter); Sunday: 200% and Public holiday: 250%. Rates of pay for some employees may not be high enough to compensate for this.
The Employer submitted that Staff Specialists work a 40-hour week and are paid above-Award rates, with a special allowance reflecting this work pattern. Staff Specialists do not work overtime, as their 40-hour week is in accordance with the State Award. In the event that overtime is required, the Employer submitted that the salaries under the State Award are sufficient to cover reasonable overtime. Additionally, the Employer noted that the NSW Health Staff Specialists Determination 2015 applies, which results in either an adjustment of hours, time in lieu for abnormal hours, or an additional payment where the provisions of the determination are met.
Recall for Duty
The Agreement at Clause 4(f) provides that employees will be available for on call and recall duties outside normal duties. This does not appear to be consistent with Clause 20.4 of the Medical Practitioners Award which provides that when Medical Practitioners are recalled for duty, they will be paid 1/38th of their weekly rate as travelling time and a minimum of three hours payment at 150% on weekdays and 200% on weekends and public holidays.
The Employer submitted that, as an affiliated health organisation, it follows the NSW Health Staff Specialists Determination 2015, which acknowledges that Staff Specialists must be available for reasonable on-call and recall duties outside of normal duties, with a salary component reflecting this requirement. Furthermore, if Staff Specialists are required to work beyond normal duties, the work pattern will be reviewed with the Specialist, aiming to reduce hours through time in lieu or adjustments to normal duties. The Employer further submitted that in practice, no overtime is worked, and on-call/recall requirements are minimal, factored into the State Award salary. Staff Specialists are on-call for one week at a time, with schedules published one month in advance, covering approximately two months.
Section 186, 187, 188 and 190
Having regard to the Employer’s submissions referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The Australian Salaried Medical Officers Federation (ASMOF) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the ASMOF.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 January 2025. The nominal expiry date of the Agreement is 23 January 2028.
DEPUTY PRESIDENT
[1] Filed in AG2025/38
[2] AG2025/38
Printed by authority of the Commonwealth Government Printer
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