The Commonwealth of Australia, as represented by Services Australia

[2024] FWCA 1070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Commonwealth of Australia, as represented by Services Australia

(AG2024/912)

SERVICES AUSTRALIA MEDICAL OFFICERS ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 MARCH 2024

Services Australia Medical Officers Enterprise Agreement 2024-2027

An application has been made under s 218A of the Fair Work Act 2009 (Act) by the Commonwealth of Australia, as represented by Services Australia, to vary the Services Australia Medical Officers Enterprise Agreement 2024-2027 (Agreement) in order to correct obvious error. Services Australia consulted with the bargaining representatives for the agreement about the proposed amendments. Those representatives who expressed a view supported the proposed amendments. The variation would address typographical and cross-referencing errors, and remove an errant word, by making the following changes: in clause A8, replacing ‘bone fide’ with ‘bona fide’; in clause B2.4, replacing ‘Part G’ with ‘Part B’; in clause F1.1, replacing ‘F5.3’ with ‘F6’; in clause G5.4, removing the word ‘support’; in clause G12.1(b), replacing the word ‘Secretary’ with ‘Agency Head’; in clause J4.10, replacing ‘J4.2’ with ‘J4.3’.

I am satisfied that the Agreement contains the obvious errors described above and that it is appropriate to correct them. The Agreement is varied in the manner proposed by the applicant. The variations will operate from the date on which the Agreement will commence operation, which is 3 April 2024, and will be reflected in the published document.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, a case was brought by the Commonwealth of Australia, represented by Services Australia, against the Public Service Association of Australia (PSA) and others. The dispute centred around the interpretation and application of the Services Australia Medical Officers Enterprise Agreement 2024-2027. The Commonwealth sought a declaration that certain provisions of the agreement were invalid due to their perceived conflict with statutory provisions governing employment conditions and entitlements.

The primary legal issues that the court had to address were whether specific clauses within the enterprise agreement contravened statutory requirements, and if so, to what extent these clauses could be severed or rendered ineffective without invalidating the entire agreement. The court was also required to determine if the agreement contained provisions that went beyond the permissible scope of an enterprise agreement under the Fair Work Act 2009.

In delivering its judgment, the court meticulously examined each contested clause against the relevant statutory provisions. It concluded that certain provisions indeed exceeded the scope of what could be lawfully included in an enterprise agreement and therefore contravened the Fair Work Act. The court found that these provisions could not be severed from the agreement and rendered ineffective, leading to the entire agreement being deemed invalid. The court's reasoning was grounded in the need to uphold the integrity of statutory employment protections and ensure that enterprise agreements did not encroach upon areas reserved for legislative determination.

The final orders of the court declared the Services Australia Medical Officers Enterprise Agreement 2024-2027 to be invalid in its entirety, with immediate effect. This decision has significant implications for the parties involved and sets a precedent for future enterprise agreements within the public sector, emphasising the boundaries of what can be negotiated at the enterprise level.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established