The Royal Flying Doctor Service Of Australia (Queensland Section) limited T/A The Royal Flying Doctor Service Of Australia (Queensland Section) Limited

[2025] FWCA 616

[2025] FWCA 616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Royal Flying Doctor Service Of Australia (Queensland Section) limited T/A The Royal Flying Doctor Service Of Australia (Queensland Section) Limited

(AG2024/5005)

ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (QUEENSLAND SECTION) LIMITED MEDICAL OFFICERS ENTERPRISE AGREEMENT 2024–2027

Health and welfare services
COMMISSIONER P RYAN	SYDNEY, 17 FEBRUARY 2025

Application for approval of the Royal Flying Doctor Service of Australia (Queensland Section) Limited Medical Officers Enterprise Agreement 2024-2027

1. The Royal Flying Doctor Service of Australia (Queensland Section) Limited (Employer) has made an application for approval of an enterprise agreement known as the Royal Flying Doctor Service of Australia (Queensland Section) Limited Medical Officers Enterprise Agreement 2024–2027 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Maximum weekly hours issue

1. In its Form F18, the Australian Salaried Medical Officers Federation (ASMOF) stated that it did not support the approval of the Agreement, with its primary contention being that the Agreement set maximum weekly hours at 48-52 hours and was contrary to the National Employment Standards (NES).

1. Clause 16 of the Agreement provides that full-time employees will be rostered to work 4 x 12 hours shifts, where 9.5 hours of each shift is ordinary hours and that the parties acknowledge that hours more than 9.5 hours per day are reasonable hours.

1. The ASMOF contends that 48 hours per week is unreasonable and that in practice, this rostering method effectively curtails any opportunity for an employee to refuse to work additional hours that are unreasonable. The ASMOF stated this issue is compounded where an employee is directed to attend work 1 hour before the nominated start time, which effectively means they work a 13 hour shift.

1. This issue was identified by the Commission during the application of approval of the current enterprise agreement. In approving that agreement, Deputy President Asbury (as the Vice President then was), stated:[1]

…I accept the submissions of RFDS in relation to the maximum working hours issue. The Agreement specifically protects the entitlements of employees under the NES including s.62 in relation to maximum weekly hours.

[21]     I am also of the view that that the hours of work provisions do not cause the Agreement to fail the BOOT. The issue for consideration in relation to whether the Agreement passes the BOOT is not whether employees are paid for all hours worked or all hours which they claim should be considered as “work”. Rather, the issue is whether each award covered employee or prospective employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

[22]     Where the Commission is considering this question in the context of hours of work which are compensated by remuneration in excess of the relevant award it is convenient to frame that consideration on the basis of whether an employee working hours provided for in the Agreement, at times and on days that the Agreement provides for such hours to be worked, would be paid more under the Agreement for working those hours than the employee would be paid for working the same hours under the Award. This analysis may also require an assessment of the arrangements in relation to working hours that the relevant agreement allows in addition to the hours actually worked at the time the assessment is undertaken.

[23]     In the present case, the Agreement as assessed by the Commission’s Agreements Team provides for salaries that range from 138% to 243% above Award rates. I accept that all rostered duty hours are not working hours and that there is a relevant distinction under the Award between an employee working and being on call. The salaries in the Agreement remunerate employees for both working and being on call and I am satisfied that the Agreement passes the BOOT. Further, I am satisfied that if all the hours included in a rostered duty period are considered working hours, employees would be paid more under the Agreement than they would be paid for working those hours under the Award.

(Emphasis added)

1. The ASMOF stated that throughout the life of the current agreement, employees have been working more of the rostered duty hours, whereas previously, the employees were on call for a portion of rostered duty hours.

1. The ASMOF cited the decision of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd[2], where the Full Court held that a term of an enterprise agreement which defined reasonable additional hours but did not require any assessment by the employer about the reasonableness of those additional hours was not a sensible industrial outcome and that the term was a term that was capable of being contravened within the meaning of s.50 of the FW Act. The Full Court held that such a provision should operate consistently with the requirements of s.62(1) of the FW Act.[3]

1. In considering this issue, I agree with the views expressed by Deputy President Asbury (as the Vice President then was) in that the issue is whether each award covered employee or prospective employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

1. The Agreement provides for salaries that range from 148.45%-174.71% above the relevant award rates for Aeromedical Officers, and 111.18%-133.50% for PHC Medical Officers. PHC Medical Officers are also entitled to additional weekend and night loadings. By my calculations, the salary rates under the Agreement are significantly more than what an award covered employee would receive, even if they worked 14 hours of overtime every week at 200%. Accordingly, I am satisfied that the employees are better off overall.

1. However, I make the following observations. Clause 4.2 of the Agreement, provides

Where there is inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

1. Therefore, I am satisfied that s.62 of the FW Act applies and that:

(i)the Employer must not require an employee work more than 38 hours unless those hours are reasonable;

(ii)an employee may refuse to work additional hours if they are unreasonable; and

(iii)whether the additional hours are reasonable is determined by reference to the matters set out under s.62(3).

1. Furthermore, if an employee exercises a right under the NES and the Employer takes adverse action against the employee, the employee may have recourse to a remedy under Part 3-1 of the FW Act.

Sections 186, 187 and 188

1. I am satisfied that each of the requirements of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the submissions of the Employer and ASMOF, and the Statement of Principles.[4]

National Employment Standards

1. I observe that clauses 31.5(a), 31.5(f), and 32.2 of the Agreement may be inconsistent with the NES. However, noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining Representatives

1. The ASMOF has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ASMOF.

Approval

1. The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 24 February 2025. The nominal expiry date of the Agreement is 24 February 2028.

COMMISSIONER

[1] Royal Flying Doctor Service of Australia (Queensland Section) Limited [2020] FWCA 2226 at {20]-[23].

[2] [2018] FCAFC 182.

[3] Ibid at [18]-[21].

[4] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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