Victorian Hospitals’ Industrial Association
[2022] FWCA 4364
•12 DECEMBER 2022
| [2022] FWCA 4364 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Victorian Hospitals’ Industrial Association
(AG2022/4880)
Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026
| Health and welfare services | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 12 DECEMBER 2022 |
Application for variation of the Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026.
Victorian Hospitals’ Industrial Association (the Applicant) has made an application pursuant to s.217 of the Fair Work Act 2009 (the Act) to vary the Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026[1] (the Agreement) to remove ambiguity or uncertainty.
The Applicant is an Employer Association registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) and acts on behalf of the Employers covered by the Agreement. The Australian Salaried Medical Officers Federation (ASMOF) is covered by the Agreement.
The Agreement was approved by the Commission on 2 November 2022 and commenced operation on 9 November 2022[2]. The Applicant submits that ambiguity or uncertainty exists with respect to certain provisions within the Agreement. These are set out and considered below.
A Mention was conducted on 9 December 2022 at which the VHIA and ASMOF appeared. The ASMOF advised that it supported the application. At the Mention, the Applicant also advised that it intended to file a revised schedule of proposed variations, which it subsequently did later that day.
In reviewing the proposed variations to the Agreement and after having heard from the Applicant and ASMOF at the Mention on 9 December 2022, I determined to deal with the application on the basis of the filed material. Neither the Applicant nor ASMOF objected to that course of action.
Statutory Provisions
Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
“(1)The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2)If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
Consideration
Clause 38.3 – On-call Allowance
The Applicant seeks to vary clause 38.3 of the Agreement in two respects. Before turning to the variations sought it is useful to set out the current clause 38.3;
“38.3 On-call Allowance
A Doctor rostered on-call -must be paid the on-call Allowance pursuant to Appendix 2, Table 2.2(b) which has been calculated on the following basis:
(a)2.5% of the Doctor’s ordinary weekly rate of pay; or
(b)on a public holiday pursuant to clause 63 (Public Holidays), 3.5% of the Doctor's ordinary weekly rate of pay.”
The variations sought in respect of clause 38.3 are as follows. Firstly, the Applicant seeks to vary the wording of clause 38.3 because it incorrectly references “Table 2.2(b)” which does not exist in the Agreement. Rather, clause 38.3 should reference “Table 2.2(a).” Secondly, Appendix 2, Part 2, Table 2.2(a) which includes the on-call allowance (as indexed) to be paid during the term of the Agreement contains errors in the amounts contained in the table.
The ambiguity or uncertainty is said by the Applicant to arise from the incorrect table referencing in clause 38.3 and the incorrect translation of the entitlement expressed in clause 38.3 of the Agreement to accurate allowance amounts in Appendix 2, Part 2, Table 2.2(a). To remedy the uncertainty or ambiguity the Applicant submits that clause 38.3 should be amended so as to correctly refence Table 2.2(a) in clause 38.3 and a revised Table 2.2(a) should be included Appendix 2, Part 2 so that the amounts contained within Table 2.2(a) accurately reflect the clause 38.3 entitlement.
I am satisfied that the clause 38.3 reference to Table 2.2(b) is incorrect. I am further satisfied that the amounts included in Appendix 2, Part 2, Table 2.2(a) do not accurately reflect the entitlement as expressed in clause 38.3. These errors in the Agreement are likely to give rise to uncertainty or ambiguity. The application to vary clause 38.3 and Appendix 2, Part 2, Table 2.2(a) is granted in the terms sought.
Clauses 37.4 & 37.5 Night Shift Rates (Registrars Only)
The Applicant seeks to vary Appendix 2, Part 4, Table 4.2 which includes night shift penalty payments (as indexed) to be paid during the term of the Agreement. The allowance entitlements found in the table derive from clauses 37.4 & 37.5 which state as follows;
“37.4Friday Evening Shifts (from 1 March 2023 onwards)
(a)From 1 March 2023 onwards, hours worked on Friday between 6:00pm and midnight will attract a penalty payment of 25% of the Doctor’s ordinary base hourly rate of pay for each hour worked within that period.
37.5Night Duty Allowance
(a)An additional 25% of the Doctor’s ordinary base hourly rate of pay must be paid for:
(i)each hour worked during a rostered shift finishing the day after work began; or
(ii)each hour worked during a rostered shift beginning after midnight and before 6.30 a.m.”
The ambiguity or uncertainty is said by the Applicant to arise from the incorrect translation of the entitlement expressed in clauses 37.4 & 37.5 of the Agreement to accurate allowance amounts for Registrars in Appendix 2, Part 4, Table 4.2. To remedy the uncertainty or ambiguity the Applicant submits that a revised table should be included so that the night shift allowance amounts for Registrars in Table 4.2 accurately reflect the clause 37.4 and clause 37.5 entitlements.
I am satisfied that the allowance amounts included in Appendix 2, Part 4, Table 4.2 applying to Registrars do not accurately reflect the entitlement expressed in clauses 37.4 & 37.5 which gives rise to uncertainty or ambiguity. The application to vary Appendix 2, Part 4, Table 4.2 is granted in the terms sought.
Conclusion
For the reasons set out above, I am satisfied that the described errors in the Agreement give rise to uncertainty or ambiguity that should be remedied by varying the Agreement. The variations sought will operate from 12 December 2022. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE518015 PR748804>
[1] AE518015
[2] [2022] FWCA 3828
Printed by authority of the Commonwealth Government Printer
<AE518015 PR748804>
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