1 Fair Work Act 2009 s.185—Enterprise agreement Australian Capital Territory T/A ACT Public Sector (AG2020/116) Health and welfare services COMMISSIONER WILSON MELBOURNE, 29 MAY 2020 Application for approval of the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021. Whether “single interest employers”. Whether alleged good faith bargaining breach to be taken into account in approval. Whether agreement and its terms explained to relevant employees. Agreement insufficiently explained; consideration of Commission’s discretion in s.188(2). Discretion not exercised; thereby not genuine agreement. Application dismissed. [1] An application has been made for approval of an enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (the 2021 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). It has been made by the Australian Capital Territory (the ACT). [2] For the reasons set out in this decision, the 2021 Agreement is not approved, and the application is dismissed. [3] Employees affected by the application presently work under the ACT Public Sector Medical Practitioners Enterprise Agreement 2013 – 20171 (the 2017 Agreement), the nominal expiry date of which was 30 June 2017. [4] The 2021 Agreement is stated by the ACT to be a “single-enterprise agreement” as that term is used within s.172(2) of the FW Act. The 2021 Agreement though covers both the ACT and “the Chief Executive of Calvary Health Care ACT Limited (Calvary) on behalf of the Australian Capital Territory”, with it being submitted the two are single interest employers engaged in a common enterprise (see s.172(5)(a)), with the common enterprise being the provision of public health services within the ACT.2 No appearance has been entered in these proceedings by Calvary and the forms and submission filed by the ACT during the course of this matter do not deal with how Calvary commenced bargaining, its participation in bargaining, or its interests in these approval proceedings. The Notice of Employee 1 AE417505. 2 Applicant's Short Supplementary Outline, 4 May 2020. [2020] FWC 2745 DECISION [2020] FWC 2745 2 Representational Rights issued by the ACT to its employees is before me, however the materials before the Commission do not include the one issued by Calvary. [5] Shortly after the application was filed in the Fair Work Commission (the Commission), Mr John Wilson, a lawyer and employee bargaining representative for the Agreement for two medical practitioners, Drs David Ashton and Stuart Berry, notified the Commission and the parties that he wished to be heard in relation to the application for approval of the 2021 Agreement. [6] Following the Commission’s usual course on 4 February 2020 correspondence was sent to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of pre-approval matters, the National Employment Standards (NES) and the Better Off Overall Test (BOOT). In summary, those matters included the following: A clause that could allow parties to opt out of Agreement terms contrary to s 194(ba) of the Fair Work Act 2009; Clauses containing unpermitted deductions; Clauses contrary to the NES on personal/carer’s leave, public holidays, annual leave and redundancy; and BOOT concerns for supported wage system employees. [7] Those concerns have either been resolved to the Commission’s satisfaction through submissions on the subject provided by the ACT or through the provision of an undertaking. No party before me sought to be heard on these subjects. [8] Also on 4 February 2020, my Chambers sent correspondence to Mr Wilson seeking the particulars of the matters the medical practitioners he represented wished to raise in relation to this matter. A reply was received from Mr Wilson on 9 February 2020 setting out concerns about the ACT’s compliance with the FW Act’s s.180. Those matters included a concern over a failure to provide all employees with the text of the 2021 Agreement and all materials incorporated by reference into the 2021 Agreement, and a failure to provide an explanation of the terms of the 2021 Agreement and the incorporated materials. [9] The ACT provided a response to the matters set out as my concerns and the objections raised by Mr Wilson on behalf of Drs Ashton and Berry in correspondence dated 10 February 2020. The Australian Salaried Medical Officers Federation (ASMOF) filed submissions in response to my concerns as well as those matters raised by Mr Wilson as did the Australian Medical Association (AMA). [10] On reviewing the material provided by the employer and the bargaining representatives, I issued Directions to parties on 20 February 2020 for Drs Ashton and Berry’s [2020] FWC 2745 3 concerns to be fully articulated and responded to by the Applicant and other bargaining representatives. [11] Drs Ashton and Berry sought through Mr Wilson to be heard on their objections and a hearing was convened. At the hearing the ACT was represented by Mr Andrew Pollock of Counsel, instructed by the ACT Government Solicitor, having been given permission by me pursuant to s.596(2) of the Act to be represented by a lawyer. Drs Ashton and Berry were represented by their bargaining representative, Mr Wilson. The Australian Salaried Medical Officers Federation ACT Branch appeared as a bargaining representative, represented by Mr Steve Ross, as did the Australian Medical Association ACT Branch, represented by Mr Tony Chase. [12] As a result of a question asked by me in the hearing about Calvary, a further objection by Drs Ashton and Berry requires determination, namely whether the 2021 Agreement is a single-enterprise agreement covering two single interest employers. [13] In all, the concerns raised by Drs Ashton and Berry may be seen to cover four main objections summarised thus: The 2021 Agreement is not a single-enterprise employer agreement and is unable to be approved as such; Employees were not given a copy of the proposed 2021 Agreement and material incorporated by reference before being requested to vote on it, contending there was no compliance with s.180(2); In contravention of s.180(5) and (6) the employer did not take all reasonable steps to ensure that the terms of the 2021 Agreement and the effect of those times were explained to them in an appropriate manner; and The obligations of s.187(2) were not complied with, with it being argued that in the course of bargaining Mr Wilson asked a question about the terms of the “Radiology Scheme” which was not answered, despite it being a “request for disclosure” being a “good faith bargaining requirement” provided for in s.228(1)(b). [14] The first objection indicated above concerns whether the application made is an application for a single-enterprise agreement. The second and third contentions are matters of genuine agreement, with it being the case that before approval of an agreement the Commission is required to be satisfied it has been genuinely agreed (s.186(2)(a)), with that term being defined in s.188 to include several elements, including that the provisions of ss.180(2), (3) and (5) have been met. “Genuine agreement” may still be found by the Commission through an exercise of discretion, notwithstanding minor procedural or technical errors, for a number of reasons, including for those aforementioned sections (s.188(2)). The final objection is said to be a matter of good faith bargaining, which Mr Wilson argues is relevant to the Commission’s satisfaction of the things in s.187. [2020] FWC 2745 4 [15] As a result it may be seen that the following matters require determination in this decision: Whether the 2021 Agreement is a single-enterprise agreement covering two single interest employers; Whether the 2021 Agreement is genuinely agreed; Whether there has been any good faith bargaining breach which would impede approval of the 2021 Agreement; and Whether the concerns identified by the Commission have been satisfactorily resolved. [16] I turn to a consideration of each of these matters. SINGLE-ENTERPRISE EMPLOYER AGREEMENT [17] In the course of the hearing in this matter the Commission asked a question of the Applicant as to whether the 2021 Agreement was a single interest employer agreement for the purposes of s.172(5). The question was asked since the Agreement is characterised as covering “the Head of Service on behalf of the Australian Capital Territory” and “the Chief Executive of Calvary Health Care ACT Limited (Calvary) on behalf of the Australian Capital Territory”. [18] In submissions provided to the Commission after the hearing the ACT submitted that Calvary operates its public hospital at Bruce as a “network service provider” on behalf of the ACT which provides funding to Calvary for that purpose. As a result: “2. The challenge is without foundation. The Enterprise Agreement is a single- enterprise agreement made by two single interest employers: the Applicant, and Calvary Health Care ACT Limited (Calvary). The Applicant and Calvary are single interest employers under s 172(5)(a) of the FW Act because they are engaged in a common enterprise, being the provision of public health services within the ACT. The nature of the arrangement between the Applicant and Calvary 3. The Enterprise Agreement covers medical professional employees - ranging from Interns to Senior Specialists 1 - engaged under the Public Sector Management Act 1994 (ACT) (PSM Act). Those employees are employed at public hospitals and other publicly operated health facilities throughout the ACT. The Applicant is the employer of employees within those classifications at each of those public hospitals, save for Calvary Public Hospital at Bruce. 4. Calvary has since 1971 operated both a public hospital (Calvary Public Hospital) and a private hospital (Calvary Private Hospital) at Bruce. At the simplest level, [2020] FWC 2745 5 Calvary operates the public hospital as a network service provider on behalf of the Applicant, whilst the Applicant provides funding to Calvary for that operation.”3 [19] Finally, it was argued that the common enterprise of the two entities as the provision of public health services throughout the ACT: “That the Applicant and Calvary are engaged in a common activity, project, or undertaking is plain on the face of each of the Network Agreement, ss 152 and 157 of the PSM Act,4 and clause 6 of the Enterprise Agreement. The provisions of the Network Agreement outlined above reveal a considerable degree of integration between the Applicant and Calvary in delivering one of a number of services which comprise the broader public health service in the ACT. Whist Calvary stands in the shoes of the Applicant as employer in relation to employees covered by the Enterprise Agreement at the Calvary Public Hospital, and the Applicant is the employer at all remaining sites, they are not 'siloed' enterprises. They do not compete against each other: rather, they each make critical contributions toward a common enterprise, in a manner which is seamless to the consumer. That 'common enterprise' is the provision of public health services throughout the ACT. The Enterprise Agreement covers that broader enterprise, not just Calvary Pubic Hospital.”5 (references omitted) [20] Against these propositions, Drs Ashton and Berry argued that this was an insufficient basis for a finding that the ACT and Calvary Health Care ACT Limited were single interest employers, arguing that such a finding could not be made given that ultimately, the purposes of the two entities were substantially different. After canvassing the different structures of the two entities and noting that Calvary is a company limited by guarantee with its only member being the Little Company of Mary Healthcare Limited the mission of which is to “bring the healing ministry of Jesus to those who are sick, dying, and in need” they argued that the Commission should find the two entities were not common enterprises. In this regard they noted earlier authority from the Commission which would take the findings in this matter in a different direction to that advocated by the Applicant6 as well as other precedence that may not assist its case7 arguing in finality that “any consideration of whether two or more employers are engaged in the common enterprise will be factually-specific and circumstance- dependent”.8 3Ibid. 4 Public Sector Management Act 1994 (ACT). 5 Applicant's Short Supplementary Outline, 4 May 2020, [13]. 6 SA Health Commission and Australian Liquor, Hospitality and Miscellaneous Workers Union (unreported, AIRC, 1995) Print M3485; Re The Minister for Health for Western Australia (unreported, AIRCFB, 1998), Print Q0368; Qantas Airways Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, AIRC, 2000), Print S5768; Re Baker’s Delight Holdings Ltd (2002) 119 IR 20 7 Shop, Distributive and Allied Employees Association v McDonald's Restaurants (unreported, AIRC, 22 March 2002, Print 915681; Application by the Independent Education Union of Australia [2017] FWC 4528. 8 Drs Ashton and Berry Short Supplementary Outline, 8 May 2020, [17]. [2020] FWC 2745 6 [21] I accept that determination of whether or not the two entities are single interest employers for the purposes of s.172(5) will depend upon all the circumstances as well as the fact that there are material differences between the legislative scheme under which some of the earlier cases referred to by Drs Ashton and Berry were decided: “… each decision arose under antecedent legislation. SA Health concerned a notice initiating a bargaining period under s 170PD(2) of the-then Industrial Relations Act 1988 (Cth) (IR Act). WA Health concerned an application for orders stopping unprotected industrial action under s 127 of the then-Workplace Relations Act 1996 (Cth) (WR Act). Whilst each involved consideration of ‘common enterprise’ as that concept arose under those Acts, the statutory schemes under those Acts differed in material respects from that under the FW Act. By way of example only: (a) the definition of ‘enterprise’ under s 12 of the FW Act differs from that of ‘single business’ as it appeared in each of ss 170LB of the IR Act and s 170LB of the WR Act (notably in the FW Act’s expansion of the term ‘activity’); (b) there are material differences in the objects provisions within the relevant Acts as a whole, and the relevant Parts dealing with collective bargaining. The “whole thrust and intent” of the FW Act is not, as Mr Wilson submits, “essentially the same as that under the previous Act[s]”. To illustrate, section 171 of the FW Act (which sets out the objects of Part 2-4) prescribes as a relevant object the provision of a “simple, flexible and fair framework” to enable collective bargaining in good faith. The objects of simplicity, and critically flexibility, are not present within either s 170L of the WR Act or s 170LA of the IR Act; and (c) most importantly, and reflecting those different objects (in particular the emphasis on flexibility), there are material differences in the substantive mechanisms for making enterprise agreements covering more than one employer. The FW Act provides a more streamlined approach to the making of multi-enterprise agreements compared with antecedent legislation,4 and provides for single-interest employer authorisations. These mechanisms reflect the FW Act’s simpler, more flexible, and facilitative purpose in relation to enterprise agreements.”9 [22] Determinations made under the current legislation have focused upon whether the component parts “contribute to the overall purpose that unites them” in order for a finding the parts are a common enterprise for the purposes of s.172(5).10 The evidence and submissions support that this is in fact the case. Both the ACT and Calvary may be regarded to be operating in spheres much greater than simply the ACT public health system. On the one hand the ACT Government is obviously responsible for public administration throughout the Australian Capital Territory in many fields and endeavours. It has funding which may be 9 Applicant’s Short Outline in Reply, 14 May 2020, [4]. 10 See, for example, Application by the Independent Education Union of Australia [2017] FWC 4528, [51]; with reference to Australian Softwood Forestry Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission (1981) 148 CLR 121 at 133, per Mason CJ. [2020] FWC 2745 7 distributed for many purposes, including towards the provision of public health services. On the other hand, Calvary is part of a wider service delivery organisation operating in places other than just the ACT. Each has come together in a common enterprise being the delivery of public health services in the ACT. For its part the ACT has chosen to fund and deliver some of its own services as well as to fund Calvary for certain services. On Calvary’s part it has chosen to accept funding and provide public health services through its Bruce facility. [23] Also of note is that the Public Sector Management Act 1994 (ACT) (the PSM Act) provides for the employment by Calvary of a person as a “public hospital employee” and then gives their employer certain rights under that Act, including the capacity of delegation of “a function given to the employer under this section” (s.157(3)). The ACT’s submissions confirm that it employs the people at its hospitals and facilities, and Calvary employs the people at the Calvary Public Hospital at Bruce. [24] On the basis of these matters, I find that the two employers are engaged in a common enterprise and that for the purposes of s.172(5) they are single interest employers. [25] While making that finding, I note that I do not have before me material that would satisfy other requirements in respect of Calvary’s compliance with the requirements in the FW Act’s Part 2 – 4, Divisions 3 and 4. Perhaps it would be argued that the power of delegation for an employer under s.157(3) of the PSM Act is sufficiently broad for an employer to delegate functions under the FW Act and that such occurred; however I do not know and make no such finding, since the matter has not been addressed. In that regard, it would appear the power of delegation in s.157(3) of the PSM Act is necessarily limited to a “function given to the employer under this section”. GENUINE AGREEMENT [26] In this part of the decision I consider the contentions argued by Drs Ashton and Berry that the relevant employees were not given a copy of the proposed enterprise agreement and material incorporated by reference before being requested to vote on the 2021 Agreement, being a contention there was no compliance with s.180(2); and that in contravention of s.180(5) and (6) the employer did not take all reasonable steps to ensure that the terms of the 2021 Agreement and the effect of those terms were explained to them in an appropriate manner. [27] The FW Act provides that before approval of an enterprise agreement, the Commission is required to be satisfied the agreement has been genuinely agreed (s.186(2)(a)), with that term being defined in s.188(1) as including satisfaction that certain procedural steps have been undertaken. Section 188(2) enables genuine agreement to be discerned even though s.188(1) is not satisfied, provided that certain other tests are met. So far as is relevant the sections are in these terms: “180 Employees must be given a copy of a proposed enterprise agreement etc. Pre-approval requirements [2020] FWC 2745 8 (1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section. Employees must be given copy of the agreement etc. (2) The employer must take all reasonable steps to ensure that: (a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials: (i) the written text of the agreement; (ii) any other material incorporated by reference in the agreement; or (b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials. (3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement: (a) the time and place at which the vote will occur; (b) the voting method that will be used. (4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1). [ss.(4A), (4B) and (4C) omitted] Terms of the agreement must be explained to employees etc. (5) The employer must take all reasonable steps to ensure that: (a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. (6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph: [2020] FWC 2745 9 (a) employees from culturally and linguistically diverse backgrounds; (b) young employees; (c) employees who did not have a bargaining representative for the agreement.” “188 When employees have genuinely agreed to an enterprise agreement (1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that: (a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement: (i) subsections 180(2), (3) and (5) (which deal with pre-approval steps); (ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and (b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and (c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. (2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that: (a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and (b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.” s.180(2) – whether employees provided with and had access to written text of the agreement and material incorporated by reference [28] I consider first whether there has been compliance with s.180(2), which required the Applicant to take all reasonable steps to ensure the relevant employees were provided with [2020] FWC 2745 10 and had access to the 2021 Agreement and “any other material incorporated by reference in the agreement”. [29] Item 2.5 of the Form F17, Employer’s Statutory Declaration filed in support of the application for approval of the 2021 Agreement addresses the steps taken by the employer to distribute a copy of the written text of the 2021 Agreement and any materials incorporated by reference during the access period or for employees to have access to a copy of the materials through the access period. The original Form F17 was filed on 17 January 2020 with the commencement of the application for approval and was amended and refiled on 27 April 2020, the day before the hearing. Item 2.5 of the Form asks a declarant to answer this question: “What steps were taken by the employer to ensure that the relevant employees either: a. were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement during the access period, or b. had access to a copy of the above materials throughout the access period?” [30] The Applicant’s response in both the original and amended Forms F17 was in these terms: Steps taken Date Email messages were sent to all eligible employees to be covered by the agreement providing them with an internet link to the proposed agreement, the Explanatory Notes to the proposed agreement and a document highlighting other material incorporated by reference in the proposed agreement. The same advice was published on some ACTPS directorate/agency intranets. 29 November 2019 Employees on paid or unpaid leave, were sent a link to the proposed agreement, the Explanatory Notes to the proposed agreement and a document highlighting other material incorporated by reference in the proposed agreement to their personal email where available. Where a personal email was not available, the relevant employees were provided with a hard copy notice to their home address providing them with an internet address to the proposed agreement, the Explanatory Notes to the proposed agreement and a document highlighting other material incorporated by reference in the proposed 29 November 2019 [2020] FWC 2745 11 agreement. Copies of the documents were also made available on the whole of government employment portal public website 29 November 2019 Copies of the documents were also made available on the Canberra Health Services Intranet Portal 29 November 2019 [31] Mr Wilson submitted that his client, Dr Berry, was absent from work on the date stated at item 2.5 of the Form F17 and that he did not receive the materials stated in the item.11 An email from Dr Berry to Mr Wilson on the same day of the hearing asserted that he had lived at an indicated address since April 2014 and never received the letter sent by the ACT. Mr Pollock, Counsel for the ACT, pointed out in the hearing that the street name nominated by Dr Berry was incorrect, and while no such street with the nominated spelling existed in the relevant suburb another with the same pronunciation did, but without the “e” used in Dr Berry’s spelling.12 [32] Other assertions made by Dr Berry included that his Workers’ Compensation absence meant that he had not been using his work email account very often, other than to obtain payslips “every few months”. He had not reviewed all emails sent to his work email account and had not checked the account on a daily/weekly basis. Dr Berry also asserted that correspondence with him by ACT Health since January 2019 about Workers’ Compensation had been to a personal email address. He also asserted that access to the ACT intranet is not available from a personal computer, and instead the intranet may only be accessed when logged into an ACT Health computer.13 [33] The amended Form F17 indicates that the ACT took four steps to provide the 2021 Agreement to employees and ensure that they had access to it: an email with links was sent to all eligible employees; employees on paid or unpaid leave were sent a link to the documents either through email or the post; the documents were also made available on the Whole of Government employment portal; and the documents were also made available to employees on the Canberra Health Services intranet.14 11 Exhibit AB 2, Outline of Submissions filed by Mr Wilson, 28 February 2020, [6]. 12 Transcript PN 131 – 132. 13 Exhibit AB 5, Email from Dr Berry to Mr Wilson, 28 April 2020, within material provided by Mr Wilson, 28 April 2020. 14 Exhibit ACT 4, Amended Form F17 Employer’s Support Statutory Declaration, filed 27 April 2020, item 2.5. [2020] FWC 2745 12 [34] The witness statement of Russell Noud15 filed in the Commission the day before the hearing puts forward that a nominated public servant posted a copy of the relevant material to Dr Berry. In its submissions the ACT argued it had met its obligations pursuant to s.180(2), with the section not imposing an absolute obligation to ensure that each employee covered by the proposed agreement had received a copy of the relevant materials. The ACT noted the section instead required only that “all reasonable steps” had been taken. After referring to the matters set out in the Amended F17, it was argued: “Those steps amounted to "all reasonable steps" in the s 180(2) context. The ACT posted the hard copy notice described at subparagraph 7(2) to Dr Berry's home address on 29 November 2019. Dr Berry also had access to the websites described at subparagraph 7(3) above. Those matters appear unchallenged. Whether or not Dr Berry in fact received or reviewed the materials is neither here nor there.”16 [35] Mr Wilson’s submissions on the subject of the notifications argued that he is instructed that Dr Berry “did not receive any of the material stated in section 2.5 of the Form F17”. ASMOF submit that this is unlikely since Mr Wilson himself was sent the material: “b) ASMOF notes that there is no direct evidence from Dr Berry in relation to the matters asserted in paragraph 6, in particular the assertions in relation to Dr Berry’s email access and his non receipt of the information referred to in paragraph 6 (b). c) ASMOF submits that on 29 November 2019 Steve Ross of ASMOF was one of three recipients of an email from Steven Linton of Canberra Health Services. The other two recipients were the 2 other bargaining representatives besides ASMOF, Mr Wilson and Tony Chase of the AMA. The email contained the information provided to employees on the (then) proposed agreement including links to the relevant documents”17 [36] The AMA’s submissions do not address this issue. [37] I am satisfied on the material before me that the Applicant has taken all reasonable steps to ensure the things required within s.180(2) were done. In particular, the evidence supports that all reasonable steps were taken to ensure employees had a copy of the written text of the 2021 Agreement and any other material incorporated by reference and that they have access to those things throughout the access period. [38] There is no particular contention advanced by Dr Ashton that he did not receive the materials, however there is a contention by Dr Berry that he never received them in the circumstances referred to above. The obligation cast by s.180(2) is that an employer “must take all reasonable steps to ensure” relevant employees “are given a copy” of the indicated 15 ACT Government Executive Group Manager, Public Sector Industrial Relations, Workforce Capability and Governance Division, Chief Minister, Treasury and Economic Development Directorate. 16 Exhibit ACT 4, Applicant’s Consolidated Outline of Submissions, 27 April 2020, [6] – [8]. 17 Exhibit ASMOF 2, Submissions of the Australian Salaried Medical Officers Federation, 3 March 2020, [5]. [2020] FWC 2745 13 materials. Rather than a formulation which may cast a strict obligation, such as “all possible steps” or “all conceivable steps” the section requires that an employer take all reasonable steps. I am not persuaded by the contentions within Dr Berry’s correspondence to his lawyer on the day of the hearing, set out above, that he neither received a copy through the post or any of the email services he maintains, or through an intranet. He put forward that he only accessed his work email account occasionally, and then largely to access payslips and the like. What he does not say is that in the course of accessing the payslips that he noticed, even some time after the event, a notification from his employer on the subject of the 2021 Agreement. It would appear from the overall evidence before me that such situation would be highly unlikely. [39] Drs Ashton and Berry are hardly industrial naïfs in this whole process; they argued strongly against the making of the Agreement and were so concerned about bargaining as to retain a lawyer to represent them as a bargaining agent. That is not a usual or insignificant step. It would be unlikely, having presented their objections in such manner, that either would be so disinterested in the subject after the close of bargaining as not to notice the ballot process had commenced and to only then resume their industrial interest once the matter proceeded to the Commission for approval. Would Dr Ashton not speak with Dr Berry on the subject? Would Mr Wilson not seek an update to his instructions? ASMOF contend that in any event the requisite information went to Mr Wilson. The obligation on the part of the employer is to ensure that all reasonable steps are taken to ensure employees have a copy of particular materials; self-evidently those steps do not extend to ensuring documents are seen by those who do not wish to see them. [40] At the time the 2021 Agreement was made, 1,116 employees were covered by the 2021 Agreement.18 The 2021 Agreement covers medical practitioners employed in the ACT public health system covering practitioners from the most junior, at the intern level, to senior specialists. It is foreseeable within that context there will be a myriad of rostering and leave arrangements. It is also foreseeable that a proportion of those covered by the 2021 Agreement will be absent from the workplace for extended periods at any given time, such as being on long service leave or sabbatical leave19 or Workers’ Compensation. In that context, the reasonable steps which could be taken by an employer to provide employees with copies of the relevant agreement and other documentation would be to ensure the relevant information was provided to employees through several different means including email and intranet communication for those actually at work; email or mail services for those not at work. It would be reasonable for an employer in such circumstance to ensure each employee was likely to receive notification through more than one means; but that does not mean that it would be reasonable for an employer to have to build in many points of contact. [41] An employee on extended leave who chooses to unlink themselves from the workplace by not perusing work emails is the actor in that decision and must take responsibility for the consequences, if any. ACT Health cannot reasonably be held responsible for the failure of Dr Berry to access his work email account on this subject. The contention is not that Dr Berry 18 Exhibit ACT 4, Amended Form F17 Employer’s Support Statutory Declaration, 27 April 2020, item 2.10. 19 2021 Agreement, Clause 103.1. [2020] FWC 2745 14 was late in seeing the email, but that he did not go looking for it. Short of evidence that Dr Berry had actually instructed ACT Health that his address for the purposes of bargaining was something other than his work email account, it must be found that ACT Health took a reasonable step by sending the material to his work email address. [42] While the postal service may have many failings, I doubt that the contention the spelling of Dr Berry’s street address means anything so far as delivery of a document is concerned. It would be unlikely that a postie could not work out that something addressed to a street name with an errant “e” was actually the same street with the same pronunciation, but spelled correctly without the “e”. I accept on the basis of Mr Noud’s witness statement20 that ACT Health addressed and posted a letter to what it understood to be Dr Berry’s correct address. That was a reasonable step for it to take, given Dr Berry’s absence on an extended absence, in his case on Workers’ Compensation. If the letter was not delivered, then it may be that it went astray, as some letters do. Certainly the employer could have used registered post or a courier requiring a delivery signature, however in the context of what is plainly a large workplace as well as the context of a multifaceted provision strategy I would not suggest that those steps are within the category of “all reasonable steps”; it would be unreasonable to push the employer to the added expense or effort of those measures. [43] The display of the documents by the employer on a public sector employment portal and the health service intranet were also reasonable steps for the Applicant to have taken. [44] Drs Ashton and Berry do not put forward that there were steps other than those actually in place that may reasonably have been taken. I do not find there were other steps which may reasonably have been taken. [45] It was reasonable for the ACT to rely on a set of measures which, taken together, ensured that each employee, whether at work or on an extended absence, had at least two points of access to the relevant material, whether that be any combination of more than one of hard-copy mail; email; public sector employment portal; or health service intranet. [46] What was provided to the employees covered by the Agreement are the things set out in the copy of the letter included in Mr Noud’s statement: “As required by the Fair Work Act 2009, we are providing two documents to assist staff in their consideration of the proposed enterprise agreement, as follows: • The Explanatory Notes to the agreement; and • A document highlighting the material incorporated by reference in the proposed agreement. A copy of the proposed agreement and a document outlining the changes from the existing agreement, is available for your consideration on the ACT Health Hub and at the ACTPS Enterprise Agreement Negotiations Website under Proposed Enterprise 20 Exhibit ACT 4, Statement of Russell Noud, filed 27 April 2020, [12]. [2020] FWC 2745 15 Agreements, at https://www.cmtedd.act.gov.au/employment-framework/for- employees/agreements.” 21 (link removed) [47] The web address is still active. Under a heading “Proposed Enterprise Agreements” is this information: “Medical Practitioners ACTPS Medical Practitioners Enterprise Agreement 2017-2021: PDF (6.6MB) or Doc (399KB) Explanatory Notes to the Medical Practitioners Enterprise Agreement: PDF (278KB) or Doc (77KB) Materials Incorporated by Reference: PDF (71KB) or Doc (128KB)” [48] In each case, the abbreviation “PDF” or “Doc” is a hyperlink to the relevant document. Unfortunately, the link to the Explanatory Notes was initially defective, however the Applicant submits that the link was rectified shortly after distribution of the initial correspondence.22 [49] One of the links indicated above refers to “Materials Incorporated by Reference”. The headnote to the document records “Material incorporated by reference - The following material is incorporated by reference in the proposed ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021. A copy of this material can be found at the following links:”. The document then lists 29 instruments as follows: 1. “Fair Work Act 2009 (Cth) (FW Act): http://www8.austlii.edu.au/cgibin/viewdb/au/legis/cth/consol_act/fwa2009114/ 2. Public Sector Management Act 1994 (ACT) (PSM Act): https://www.legislation.act.gov.au/View/a/1994-37/current/PDF/1994-37.PDF 3. Public Sector Management Standards (PSM Standards): https://www.legislation.act.gov.au/View/di/2016-251/current/PDF/2016-251.PDF 4. Financial Management Act 1996 (ACT) (FM Act): https://www.legislation.act.gov.au/View/a/1996-22/current/PDF/1996-22.PDF 21 Ibid, Attachment D. 22 Transcript, PN 39 – 47; 129. [2020] FWC 2745 16 5. Work Health and Safety Act 2011 (ACT) (WHS Act): https://www.legislation.act.gov.au/View/a/2011-35/current/PDF/2011-35.PDF 6. Territory Records Act 2002 (ACT) (TR Act): https://www.legislation.act.gov.au/View/a/2002-18/current/PDF/2002-18.PDF 7. Holidays Act 1958 (ACT) Holidays Act: https://www.legislation.act.gov.au/View/a/1958-19/current/PDF/1958-19.PDF 8. Safety Rehabilitation and Compensation Act 1988 (Cwth) (SRC Act): http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/sraca1988368/ 9. Superannuation Guarantee (Administration) Act 1992: http://www5.austlii.edu.au/au/legis/cth/consol_act/sga1992430/ 10. Fair Work Regulations 2009: http://www6.austlii.edu.au/cgibin/viewdb/au/legis/cth/consol_reg/fwr2009223/ 2 11. Superannuation Industry (Supervision) Act 1993: http://www.austlii.edu.au/au/legis/cth/consol_act/sia1993473. 12. Superannuation (Resolution of Complaints) Act 1993: http://www.austlii.edu.au/au/legis/cth/consol_act/soca1993464. 13. Superannuation Act 1976: http://www.austlii.edu.au/au/legis/cth/consol_act/sa1976195/ 14. Superannuation Act 1990: http://www.austlii.edu.au/au/legis/cth/consol_act/sa1990195/ 15. Veterans’ Entitlement Act 1986: http://www.austlii.edu.au/au/legis/cth/consol_act/vea1986261. 16. Human Rights Act 2004: http://www.legislation.act.gov.au/a/2004-5/current/pdf/2004-5.pdf. [2020] FWC 2745 17 17. Public Health Act 1997: http://www.legislation.act.gov.au/a/1997-69/current/pdf/1997-69.pdf. 18. 18. Paid Parental Leave Scheme: https://www.fairwork.gov.au/leave/maternity-and-parental-leave/paid-parental-leave https://www.humanservices.gov.au/individuals/services/centrelink/parental-leave-pay 19. Discrimination Act 1991: http://www.legislation.act.gov.au/a/1991-81/current/pdf/1991-81.pdf 20. Children and Young People Act 2008: http://www.legislation.act.gov.au/a/2008-19/current/pdf/2008-19.pdf https://www.legislation.act.gov.au/a/2008-19/ 21. Defence Reserve Service (Protection) Act 2001: http://www.comlaw.gov.au/Details/C2006C00054 22. ACT Public Service Work level Standards: http://www.cmd.act.gov.au/governance/public/publications/classification_schedules https://www.cmtedd.act.gov.au/employment-framework/for- employees/classification_schedules 23. Health Practitioner Regulation National Law (ACT) Act 2010 https://www.legislation.act.gov.au/a/2010-10/ 24. Health Act 1993 https://www.legislation.act.gov.au/a/1993-13/ 25. ACT Public Service Administrative and Related Classifications Enterprise Agreement 2018-2021 https://www.cmtedd.act.gov.au/employment-framework/for-employees/agreements 26. Family Violence Act 2016 (ACT) https://www.legislation.act.gov.au/a/2016-42/ [2020] FWC 2745 18 27. Fatigue Management Policy https://www.cmtedd.act.gov.au/__data/assets/pdf_file/0011/1451594/Fatigue- Management.pdf 28. Relocation Subsidy Reimbursement for Junior Medical Officers Policy https://www.cmtedd.act.gov.au/__data/assets/pdf_file/0003/1451595/Relocation- Subsidy-reimbursement-Guideline-as-at-July-2017.pdf 29. Specialist to Senior Specialist Selection Process https://www.cmtedd.act.gov.au/__data/assets/pdf_file/0004/1451596/Specialist-to- Senior-Specialist-Selection-Process.pdf If you have any problems accessing these documents at the links provided do not hesitate to contact your relevant HR/Corporate area.” (links removed) [50] As a result of this consideration, I am satisfied that in the context of this workplace the Applicant took all reasonable steps to ensure all relevant employees were provided with a copy of the proposed 2021 Agreement and what it said were the materials incorporated by reference. If, as a result of the initially defective link to the Explanatory Notes, employees did not have access to the Notes “throughout the access period for the agreement” (s.180(2)(b)) I would be disposed to exercise a discretion pursuant to s.188 that such was a minor procedural or technical error not preventing satisfaction on my part that the requirements of s.180(2) had been complied with. ss.180(5) and (6) – explanation of terms of the agreement and the effect of those terms [51] The obligation to take all reasonable steps to explain the terms of an agreement and the effect of those terms in appropriate terms is set out within s.180(5) and the examples of the kind of employees whose circumstances and needs are to be taken into account in determining whether an explanation is appropriate are provided for in s.180(6). [52] It was submitted by Drs Ashton and Berry that “[t]here is no evidence whatsoever on the face of the Form F17 that any explanation of “the terms of the [Incorporated Material], and the effect of those terms” was provided to any employee who was invited to approve the agreement.” Mr Wilson raised a concern on their behalf that the scale of the material incorporated by reference into the Agreement cannot be seen to leave each employee and prospective employee better off overall as they would be required to comply with each and every provision of the incorporated material.23 [53] Furthermore they submitted that the material purported to be incorporated by reference into the Agreement includes “29 federal or ACT pieces of legislation (many of which are 23 Exhibit AB 2, Outline of Submissions for Drs Ashton and Berry, 28 February 2020, [17] – [19]. [2020] FWC 2745 19 voluminous – e.g. the Fair Work Act, the Safety Rehabilitation and Compensation Act, the Public Sector Management Act 1994 (ACT) (PSMA), etc., etc.), regulations, legislative instruments, policies and processes”.24 The product of those incorporations and s.180(5) required the employer to explain the terms and effects of each clause of each of the 29 documents incorporated. It was then argued that there is an onus on the employer in such case to give an explanation which satisfied the likely consequence of incorporation by reference of such instruments. This was because it was foreseeable that, having been incorporated, contravention of that which is set out in the incorporated material in turn became a potential contravention of the FW Act, which would be a civil remedy contravention. Such a contravention may come about not only because of the provisions of s.50 which requires a person not to contravene the terms of an enterprise agreement, but also because of the civil remedy enforcement provisions in ss.539, 540 and 545.25 In some cases this could lead to an application being made against one of the doctors to a Court which may lead to the imposition of a penalty as well as compensation for loss caused by the contravention, which may be limitless.26 Particular to the need for an explanation to be given about the prospect of civil remedy enforcement under the Fair Work Act 2009 for a contravention of incorporated instruments, Drs Ashton and Berry argued: “13. It is no answer to speculate and say that the Employer would ‘never do that’ or be ‘unlikely to do that’. The fact is that the incorporation entitles the Employer to do so. 14. Nor can the vice be cured by the Employer making an undertaking: the Incorporated Material, … requires all employees to whom the Agreement applies to comply, again by force of the Agreement (section 50), to a multitude of statutory obligations. That is, the Agreement itself requires compliance with those statutory obligations, over and above what the statutory itself might require in terms of compliance. The Employer cannot “undertake” not to insist on employees complying with something that the Agreement itself requires them to comply with.”27 [54] The ACT rejected these arguments, submitting there is no obligation “to explain the effect of each and every term of each of the various pieces of legislation and statutory instruments within the Reference Materials”28 and that in fact the materials are not incorporated as agreement terms. The former submission is founded on the propositions distilled by the Full Bench in CFMEU v Ditchfield Mining,29 and originally drawn from the Full Court decision in One Key Workforce (No 1), summarised by the ACT as being these: “(1) whether an employer has complied with the obligation in s 180(5) depends· on the circumstances of the case; 24 Ibid, [8]. 25 Ibid, [10]. 26 Ibid, [12]. 27 Ibid. 28 Exhibit ACT 4, Applicant’s Consolidated Outline of Submissions, 27 April 2020, [9]. 29 [2019] FWCFB 4022, [65] – [68]; with reference to One Key Workforce (No 1) (2017) 270 IR 410; see, in particular, [94]- [109] [2020] FWC 2745 20 (2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether: (1) the steps taken were reasonable in the circumstances; and (2) these were all the reasonable steps that should have been taken in the circumstances; (3) the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; (4) an employer does not fall short of complying with the obligation ins 180(5) merely because an employee does not understand the explanation provided.”30 [55] Further, the ACT argued the Ditchfield propositions could be added to in several respects and that in finality the Applicant took steps which went beyond those which would be mandatory: “23. To those can be added two further relevant propositions: (1) first, a requirement to take all reasonable steps does not extend to all steps that are reasonably open in a literal or theoretical sense. Put another way, whether a step is "reasonable" is to be assessed in full context. That context logically must include consideration of the other steps being taken by the employer. A particular step may be reasonable considered in isolation. But it may be superfluous (and hence not reasonable to require it) where the employer has taken other steps which achieves 180(5)'s object by other means. Otherwise, s 180(5) would place too burdensome an onus on employers: it would set the bar for compliance at the limits of the imagination of objectors and the Commission, and risk equating "all reasonable steps" with "all conceivable steps". (2) second, s 180(5) calls for a practical approach: it does not compel an employer to provide a detailed explanation of each and every term of an agreement. An employer's explanation of the terms and effect of those terms to employees may not be perfect, but still satisfy the requirement in section 180(5). Employers cannot be expected to be totally objective and knowledgeable, and mistakes and omissions will occur. 30 30 Exhibit ACT 4, Applicant’s Consolidated Outline of Submissions, 27 April 2020, [22]. [2020] FWC 2745 21 24. The evidence before the Commission concerning the ACT's explanation showed that explanation was detailed and extensive. That evidence - set out within, and annexed to, the Amended Form 17 - showed that the ACT: (1) provided (by way of the Explanatory Notes) a detailed analysis of the key differences between the proposed Agreement and existing agreement; (2) sent links to the Reference Materials; (3) convened six information sessions - held at different times of the day at different sites – to explain the terms of the agreement, and to enable all employees to raise concerns or seek clarification on any provision of the draft Agreement. Those sessions were arranged in consultation with ASMOF; (4) provided employees with contact details if they required further information in relation to the proposed Agreement. 25. Those steps went beyond that which would be mandatory in every case. They plainly amounted to "all reasonable steps" for the purposes of s 180(5).”31 (references omitted) [56] The ACT submitted in relation to the incorporated reference material that it was not, in any event, incorporated. While accepting its Form F17 says it is, the submission points out such is a misnomer, with the terminology not accurately reflecting the relationship between the Reference Materials and the Agreement.32 In this regard it was argued: “17. First, none of the terms of the Agreement expressly purport to incorporate any term of the Reference Materials. At highest, the Agreement defines certain terms with reference to certain of the Reference Materials, or else frames certain obligations arising under a particular Agreement term with partial reference to criteria set out in certain of the Reference Materials. 18. Second, and to the contrary, the Agreement contains terms which expressly exclude the Reference Materials from the Agreement. For example: (1) clause 5.1 provides that "[t]his Agreement is comprehensive and provides the terms and conditions of employment of employees covered by this Agreement, other than terms and conditions applving under applicable legislation" [emphasis added]. Clause 5.2 then sets out a non-exhaustive list of that "applicable legislation", which includes many of the pieces of legislation and instruments comprising the Reference Materials; 31 Ibid, [23] – [25]. 32 Ibid, [13]. [2020] FWC 2745 22 (2) clause 5.5 provides that the Agreement "prevails over ACT legislation, including the PSM Act and the PSM Standards and relevant policy statements and guidelines to the extent of any inconsistency”; and (3) clause 134 expressly excludes from the internal review procedures set out in Section P of the Agreement certain decisions and actions arising under various legislation comprising the Reference Materials. 19. Contextually construed, none of the Agreement terms expressly incorporate any term of the Reference Materials as a term of the Agreement. …”33 (references omitted) [57] ASMOF and the AMA submitted about these matters that the material incorporated by reference has been a feature of agreements applying to medical practitioners for some time and that the circumstances of the requisite explanation may be distinguished from those in BGC Contracting.34 [58] Material or information which could form part of the relevant explanation for the purposes of s.180(5) consists of several things: The material provided by the ACT when it notified employees they were being asked to consider the 2021 Agreement, which consisted of a link to the 2021 Agreement, Explanatory Notes and the document entitled “Material Incorporated by Reference”; Material provided at the December 2019 staff meetings, when attendees received a verbal presentation and had the opportunity to ask questions and have them answered; Written “frequently asked questions” compiled after the staff meetings and made available to staff through the Health Services intranet. [59] The Explanatory Notes commence with a statement of purpose: “WHAT’S DIFFERENT ABOUT THE ACT PUBLIC SECTOR MEDICAL PRACTITIONERS ENTERPRISE AGREEMENT 2017-2021 PURPOSE The purpose of this document is to explain the proposed main amendments to the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 ("the Agreement"), to ensure that employees have a good understanding of the outcomes negotiated with unions and other representatives. GENERAL 33 Ibid. 34 Exhibit ASMOF1, Outline of Submissions, filed 13 February 2020; Exhibit AMA2, Outline of Submissions, filed 3 March 2020. [2020] FWC 2745 23 A number of changes to the proposed Agreement have sought to clarify minor technical and operational requirements relating to existing entitlements and processes. Among these are important changes that ensure consistency with legislation, and changes which are aimed at consistency within the Agreement itself.”35 [60] The Explanatory Notes then list “Major Amendments” under 18 sub-headings, with “Other Changes: Core” identified under a further 6 sub-headings, with changes to leave broken into a further 5 paragraphs. The focus of the material within the Explanatory Notes is plainly upon change, in the sense of changes proposed to be made to the 2017 Agreement, whether they be changes to wages or allowances or to conditions of employment. The material is not presented as a paragraph by paragraph summary of each clause in the Agreement or the meaning of each term as may be found, for example, in a legislative Explanatory Memorandum. There are some direct and indirect references to the instruments referred to by the Applicant as “Material Incorporated by Reference”, for example:36 With apparent relevance to the Superannuation Guarantee (Administration) Act 1992: “Superannuation (54) For the first time, superannuation entitlements will be included in the Agreement in full. Members of preserved schemes like the CSS and PSS will continue to receive the contributions they do currently. Members of Superannuation Guarantee Funds are currently receiving 10.5% (9.5% Super guarantee+ the current additional employer contribution of 1%). This will increase to: • 10.75% on 1 July 2018; • 11% on 1 July 2019; and • 11.5 % on 1 July 2020. The Government will continue to offer 1% additional employer contribution for members of Superannuation Guarantee Funds who choose to contribute at least 3% of their salary to their superannuation. SUPERANNUATION ON PARENTAL LEAVE The Government offer will extend superannuation contributions to the unpaid portion of the first 12 months of parental leave. This includes birth leave (aka maternity leave) and unpaid parental and grandparental leave.” 35 Statement of Russell Noud, filed 27 April 2020, Attachment E. 36 Ibid. [2020] FWC 2745 24 With apparent relevance to the “Specialist to Senior Specialist Selection Process”; “Advancement to Senior Specialist (14) The previous mechanism for promotion from specialist to senior specialist has been replaced by a single broad-banded specialist/senior specialist classification, with competency-based advancement to the Senior Specialist grade. Under the new scheme, it will not be necessary for a position to be advertised for an application for advancement to be considered. CHS and ASMOF will consult on competency requirements to support the broadband arrangement in the new Agreement, with a new policy to be introduced to support the advancement process. Before the agreement commences, promotion to Senior Specialist will be consistent with the current policy.” With apparent relevance to the Health Practitioner Regulation National Law Act 2009: “Dictionary Definitions for AHRPA, Business Day and Scheme Pay have been included. The definition of Staff Specialist/ Specialist has been updated to better reflect the focus on AHPRA registration.” With apparent relevance to the Public Sector Management Act 1994 (ACT) and the Health Practitioner Regulation National Law (ACT) Act 2010: “Employment (9) The Government remains committed to providing job security for employees as far as possible. Several amendments in the proposed Agreement are aimed at strengthening this commitment.” With apparent relevance to the FW Act: “Workplace Flexibility The proposed Agreement significantly simplifies and strengthens the ability for employees to access a range of entitlements in the Agreement to ensure they can balance their work and personal commitments. The proposed clauses provide flexibility well above the minimum requirements of the Fair Work Act, while incorporating the concept of 'Reasonable Business Grounds' into the [2020] FWC 2745 25 Agreement to allow any disputes to be raised through the Dispute Avoidance/Settlement Procedures of the Agreement, an avenue currently more restricted in the existing Agreement. In summary- any employee, may for any reasons request a Flexible Working Arrangement. This may be a part-time or job-sharing arrangement, or varied start and finish times, flexible access to leave and any number of other arrangements. Any such request can only be refused on reasonable business grounds, and those business grounds are listed in the Agreement, and are more restrictive than those under the Fair Work Act. These arrangements will be recorded in writing and can be for a period of up to three years, at which they will be reviewed. If the employee so requests, a new arrangement can then be entered into unless there are reasonable business grounds for refusing the request.” With apparent relevance to the Holidays Act 1958 (ACT): “PUBLIC HOLIDAY PAY IN LIEU FOR SHIFTWORKERS ROSTERED OFF ON A PUBLIC HOLIDAY (37) Currently, if a shift worker is rostered off on a Public Holiday, they are entitled to an additional day off. If they cannot access the additional day off, they can instead receive a day’s pay. That day is currently calculated based on a standard day, rather than the length of the shift. The Government has agreed to extend this to the length of the shift for nonstandard shifts in circumstances where the difference between the shift length and the standard day is not otherwise compensated by, for example, additional Annual Leave, Composite Pay Rate or Accrued Days Off.” With apparent relevance to the Family Violence Act 2016 (ACT): “FAMILY VIOLENCE LEAVE (93) The Family Violence Leave provisions have been clarified to ensure better access for employees. This includes expanding the list of examples of the purpose for which leave can be taken and including clarification that leave may also be needed for travel and recovery after appointments etc.” With apparent relevance to the Public Sector Management Act 1994 (ACT): “Workplace Values and Behaviours (Section N) [2020] FWC 2745 26 The sections of the Agreement that deal with Misconduct and Underperformance have been significantly rewritten. The purpose is to ensure that Procedural Fairness and Natural Justice Principles are enshrined throughout these sections. Transparency and fairness are integral to any misconduct and underperformance process. Key changes include: • A re-focussed preliminary assessment process, which seeks to move away from an automatic assumption that there is an adversarial relationship between a victim and offender, ensuring assessments are conducted swiftly and at a local level as far as possible. • The introduction into the Agreement of the Public Sector Standards Commissioner (PSSC), an independent office established in the Public Sector Management Act changes in 2016. The PSSC now oversees investigations through the Professional Standards Unit and is responsible for making findings of misconduct. • Greater clarity around what happens to misconduct processes if an employee leaves the ACTPS while the process in on foot. • New rights for employees to have input into a decision of finding of misconduct, prior to a final finding and prior to a decision about sanction, to which an employee has a separate right to reply. • The right for an employee to appeal a finding as well as a sanction. Currently the appeal right is restricted to the sanction itself.” With apparent relevance to the FW Act, the Public Sector Management Act 1994 (ACT); the Public Sector Management Standards; the Superannuation Industry Superannuation Supervision Act 1993; the Superannuation (Resolution of Complaints) Act 1993); and the Safety, Rehabilitation and Compensation Act 1988: “Internal Reviews and Appeals (Section P) Amendments to these processes are largely aimed at clarifying current processes and to improve transparency, including providing greater independence for appeals. Key changes include: • A new section dealing with Reviews and Appeals of certain recruitment processes. These are currently co-located with other Reviews and Appeals, which was considered confusing as the processes are not consistent with those that apply to misconduct, underperformance and other decisions. • Appeals have been made determinative. Currently, the Appeal Panel makes a recommendation to the Head of Service (or delegate), who then decides [2020] FWC 2745 27 whether or not to accept the recommendations. In the new Agreement, the decision of the Appeal Panel stands, but may still be disputed in the Fair Work Commission using the Dispute Avoidance/Settlement Procedures.” [61] The “MPEA FAQs” document deals with 8 topics covering matters of the pay rise and superannuation; advancement to senior specialist; changes to hours and arrangements; changes to additional leave for weekend work and education support. The eighth topic deals with incorporation within the 2021 Agreement of the “existing Pathology, Radiology and Radiation Oncology Schemes”. [62] Section 180(5) requires an employer to take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees with the explanation being in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The Commission has held about the obligation to take “all reasonable steps” that such requires the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply; that whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises; and that a requirement to take all reasonable steps does not extend to all steps that are reasonably open in a literal or theoretical sense.37 [63] The context of the 2017 Agreement includes that it is a lengthy enterprise agreement covering many facets of the employment relationship. Bargaining took place over a period spanning some three years.38 The text of the 2021 Agreement runs to over 160 pages, spanning 161 clauses with 5 annexures. It is by no means a short or simple agreement or one focussing on a few topics only. The currently applicable 2017 Agreement is not much different in terms of its length or complexity. [64] The 2021 Agreement applies to over 1,100 employees, all of whom are medical practitioners, ranging from interns upwards. Interns are the lowest paid employees, on an annual salary without shift or other penalties of $74,826, agreed to commence from December 2019, ranging up to Senior Specialists on an annual salary, also without shift or other loadings, of $237,714. Specialists and Senior Specialists may elect to participate in rights of private practice, which would bring them further payment. At the very least a significant proportion of the 1,100 covered by the Agreement are at the level of specialist or above; the ASMOF representative responded to a question from me regarding changes to the advancement process from specialist to senior specialist that the change might affect half the workforce.39 [65] The challenge made by Drs Ashton and Berry about the explanation they received about the Agreement’s terms and the effect of those terms is two-fold. It is argued generally that the explanation given about the incorporated material was deficient. More specifically, it is argued that changes to the Radiology Scheme were insufficiently explained during 37 BGC Contracting [2018] FWC 1466, [43]; affirmed by the Full Bench in AWU v Rigforce [2019] FWCFB 6960, [36]. 38 Exhibit ACT 4, Applicant’s Consolidated Outline of Submissions, 27 April 2020, [1]. 39 Transcript, PN 249. [2020] FWC 2745 28 bargaining, with an inadequate explanation given to them on the subject when they came to consider the 2021 Agreement for approval. [66] Material is incorporated into a contract if the context of the term in question incorporates the conditions of the externally referenced provisions, but then only to the extent that the provisions are not inapplicable having regard to other terms of the contract.40 In the enterprise agreement context and relating to the incorporation of policies into an enterprise agreement, the Commission has held, and I concur, that the question may be answered by asking whether their provisions of any obligation on employees who are covered by the Agreement to comply with the policies to which reference is made.41 Further, sign-posting of external material in an agreement is just that; the sign-post does not create an obligation within an agreement and does not mean the thing pointed to becomes a part of the agreement: “[59] In Broadsword I determined that clause 25.1 of that enterprise agreement there in issue, which provides that ‘it is a condition of employment that Employees shall comply with all Occupational Health and Safety policies and procedures’ of the employer, did no more than advise employees that compliance with occupational health and safety policies and procedures is a condition of their employment. It did not render the policies and procedures a term of that agreement. The policy was not in my view incorporated by reference.”42 [67] This finding, by Deputy President Gostencnik in BGC Contracting, was in relation to a clause of the enterprise agreement requiring employees to comply with site security obligations, or face disciplinary action. The clause itself provided the following: “32. Site Security 32.1 It is a condition of employment that an Employee shall comply with the relevant site security processes and procedures as determined from time to time. This may include the searching of site accommodation. 32.2 Any breach of the site security protocols will result in disciplinary action being taken against the offending Employee, including possible exclusion from the site and/or termination.” [68] Gostencnik DP held the following about the clause and pertinently that there was no incorporated material and no risk of pecuniary penalty for contravention of the things the clause provided: 40 Giliberto v Kenny (1983) 48 ALR 620. 41 BGC Contracting Pty Ltd [2018] FWC 1466, [58]. 42 Ibid. [2020] FWC 2745 29 “[62] Clause 32.1 of the Agreement read in isolation imposes no obligations. As such on its own, it does not incorporate, by reference, the processes and procedures set out therein. [63] However clause 32.2 is of a different character. It does not create an obligation under the Agreement to comply with the protocols. It provides that disciplinary action may be taken against an employee who breaches the site protocols. The imposition of disciplinary action is sanctioned by the Agreement in relation to a breach of the site security protocols. Under the Agreement a failure to comply with the site security protocols has disciplinary consequences. Moreover, it seems to me that a dispute concerning whether an employee has breached site security protocols or whether the nature of the disciplinary action imposed is commensurate with or proportional to the nature of the breach, are matters which can give rise to a dispute "about the meaning or application of" the Agreement and may be dealt with in accordance with clause 33 of the Agreement. However, it does not follow that if an agreement sanctions the taking of disciplinary action in relation to breach of the document extraneous to the agreement, there is an obligation created by the agreement to comply with the document and the document is thereby incorporated by reference. [64] A document that is incorporated by reference in an agreement is a term of the agreement and is enforceable as a term. Where a document is incorporated by reference because an agreement creates an obligation to comply with the document, the obligation to comply is enforceable because it is expressed as such in the agreement. There must be an obligation created by the terms of the agreement to comply with the terms of the document mentioned. Here neither is the case. The site security protocols are not expressly incorporated by reference, nor is compliance mandated by a term of the Agreement. If an employee breaches site security protocols, will that employee have breached the Agreement and be liable to the imposition of a pecuniary penalty? The answer must be no as there is no term of the Agreement imposing such an obligation. The Agreement merely sanctions the taking of disciplinary action for breach of a document extraneous to the Agreement. By that reason alone, it cannot be said that the site security protocols are incorporated by reference into the Agreement.”43 [69] The contest in this matter about the general explanation relates to the explanation of materials incorporated by reference. In this regard, the Applicant circulated to employees a link to a document entitled “Material incorporated by reference” which stated, “The following material is incorporated by reference in the proposed ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021”. The document then lists the 29 instruments referred to earlier in the decision. An examination of the things listed does not support the proposition that each is “material incorporated by reference”. The incorporation of material in an enterprise agreement is not only within the context of s.180(2), but also of s.257 which is in the following terms: 43 Ibid. [2020] FWC 2745 30 “257 Enterprise agreements may incorporate material in force from time to time etc. Despite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing: (a) as in force at a particular time; or (b) as in force from time to time.” [70] Incorporation of material is plainly more than referencing. To refer to but one example from the list of 29 referenced instruments, would a provision of an enterprise agreement which required a medical practitioner to “provide evidence of current registration to practice, with the ACT Medical Board, under the Health Practitioner Regulation National Law (ACT) Act 2010 before appointment/engagement is confirmed and thereafter annually” incorporate the referenced Act into the agreement? The answer is plainly not; it is a reference only to something which is part of the law of the Australian Capital Territory and the milieu of practice as a medical practitioner. [71] The contentions made by Drs Ashton and Berry that a mere reference to legislation may render them liable to significant civil remedy penalties under the FW Act is simply not made out. Developing the above example, what is referred to about the Health Practitioner Regulation National Law (ACT) Act 2010 is nothing more or less than an obligation under the 2021 Agreement to provide evidence of medical registration both upon employment and thereafter annually. Whereas a failure by either to annually provide evidence of their medical registration may lead to disciplinary action being taken or even dismissal and potentially an action for a breach of the enterprise agreement on that subject alone, there is no case to be made that every other term of the Act is incorporated as a term of the 2021 Agreement. The same reasoning would apply to each of the other referenced instruments. [72] The references within the 2021 Agreement to the 29 instruments are mainly, but not exclusively, in a few places only. Some are referred to only a single time. Many, such as the reference to the PSM Act create obligations that something will be done “under” or “in accordance with” a certain provision or principle established by the Act. With a few exceptions the references in the 2021 Agreement appear not to have changed materially from the references in the 2017 Agreement. Every instrument referred to in the 2021 Agreement is referred to in 2017 Agreement, and is referred to in the same places. [73] The context of this Agreement and workplace allows several conclusions to be drawn about the references to the “material incorporated by reference”: The focus of the explanation to employees was upon the things that had changed between the 2017 and 2021 Agreements; The 2021 Agreement is built upon the foundation of earlier enterprise agreements, and most notably the 2017 Agreement; in that regard the 2021 Agreement is [2020] FWC 2745 31 incrementally different, even if the changes are important and the product of lengthy if not tough or even hard bargaining; There is much assumed knowledge both as between the bargaining parties and within the text of the 2021 Agreement (and as much within the 2017 Agreement); not all of this assumed knowledge is actually within the text of either Agreement; Like most public sector workplaces, employees covered by the 2021 Agreement work within a highly regulated but transparent environment in which many decision processes are codified, whether by legislation or policy. Above all, this workplace is a public sector workplace, working in accord with the usual public sector employment selection and advancement and financial management and governance strictures. [74] Beyond the features of the workforce already referred to, it is relevant to note that at the time the 2021 Agreement was made the workforce comprised precisely equal numbers of men and women (558 each). Just over a quarter of all employees (290) came from non- English speaking backgrounds; 6 identified as being an Aboriginal or Torres Strait Islander, and 11 had some measure of disability. 272 employees worked part-time and 26 on a casual basis. [75] In assessing whether there has been a sufficient explanation of the terms of the Agreement and the effect of those terms these matters of context are to be taken together with the size and professional seniority of the workplace, as well as that this is a replacement of an earlier agreement. It would be reasonable in such a context for the explanation which is given to focus on the things of important difference. In the same way that a medical specialist may not require underpinning first-principles training to be given afresh to them each time they are given training about a new care treatment or drug it may be expected that experienced, well- educated public sector employees do not require a first-principles explanation about legislation or employment advancement protocols they have been working under for some time. [76] The purpose of the obligation imposed by s.180(5) “is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement”.44 Compliance with the provision requires taking into account the particular circumstances and needs of employees “including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative”.45 The changes of significance between the 2017 and 2021 Agreements are those set out in the Explanatory Notes. 44 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, (2018) 277 IR 23, [115] 45 Ibid, [116]. [2020] FWC 2745 32 [77] In this context it was reasonable for the Applicant’s explanation to focus on the matters of change between the predecessor 2017 Agreement and the proposed 2021 Agreement. Such finding then satisfies the general complaint regarding explanation of the “material incorporated by reference”. [78] The same is not able to be said of the changes made to Clause 46 (Rights of Private Practice Arrangements for Specialist and Senior Specialists) a subject which Drs Ashton and Berry say was not adequately explained to them in bargaining or after. [79] The Explanatory Notes indicate the following on the subject of the Radiology Scheme: “Rights of Private Practice (46) The Rights of Private Practice arrangements have been expanded to include the details of the Pathology Scheme and the Radiology Scheme, which were previously only referenced. The Radiation Oncology Scheme has also been included, ensuring a greater degree of clarity and consistency of entitlement for all staff. The facility fees applying to the various schemes will be reviewed during the life of the Agreement (46.13).”46 [80] The FAQ’s document gives this information on the subject: “Are there new Private Practice Schemes? • No. The existing Pathology, Radiology and Radiation Oncology Schemes have simply been incorporated into the Agreement as is.”47 [81] In the context of a question asked by Mr Wilson in the course of bargaining, Drs Ashton and Berry argued that insufficient explanation had been given to them about changes to private practice rights. The 2017 Agreement makes only brief reference to the Radiology Scheme, providing in Clause 47.4 that “[t]he available schemes are: …(e) Retention of Radiology Scheme”. Drs Ashton and Berry are both radiologists48 and thereby likely affected by inclusion of the “Radiology Scheme” into the enterprise agreement. In their submissions on the subject of good faith bargaining, Drs Ashton and Berry make these arguments: “20. In the document headed What’s Different About The ACT Public Sector Medical Practitioners Enterprise Agreement attached to the Form F17 (which those I represent understand to be Attachment C), it is stated: Rights of Private Practice (46) 46 Exhibit ACT 4, Statement of Russell Noud, 27 April 2020, Attachment E. 47 Ibid, Attachment C. 48 Transcript, PN 114. [2020] FWC 2745 33 The Rights of Private Practice arrangements have been expanded to include the details of …the Radiology Scheme, which were previously only referenced. … 21. The first instrument which referred to the “radiology scheme” was the A.C.T. Health Medical Staff Certified Agreement 2005-2008 (2005 CA). It relevantly provided: 125. Rights of Private Practice Arrangements for Specialists and Senior Specialists 125.1 The parties have agreed that new private practice arrangements will apply from no later than April 2006. 125.2 The new schemes outlined in this clause will replace the current schemes. … 125.9 The new arrangements are: … … (f) Retention of Radiology Scheme. 22. Every collective agreement and enterprise agreement that has succeeded the 2005 CA has simply stated in relation to the radiology scheme (using the 2017 EA as the example – all other predecessors are in the same terms): 47. RIGHTS OF PRIVATE PRACTICE ARRANGEMENTS FOR SPECIALIST AND SENIOR SPECIALISTS … 47.4 The available schemes are: … (e) Retention of Radiology Scheme. 23. On a number of occasions during the course of bargaining for the agreement, I, on behalf of Dr Ashton and Dr Berry, asked the Employer, with reference to section 228 and in terms of “disclosing relevant information”, to state what the terms of the “Radiology Scheme” within the meaning of the 2017 EA (and all earlier instruments back to the 2005 CA) were, and why it was contended that whatever was stated was the case. The Employer did not answer that request for disclosure. As a consequence, Dr Berry and Dr Ashton were not able to consider whether the terms of the “radiology scheme” set out in the Agreement were better than, the same as or worse then those [2020] FWC 2745 34 provided under the predecessor instruments going back to the 2005 CA.”49 (underlining added) [82] The ACT criticised the question posed above as being opaque and queried whether it was even capable of an answer.50 [83] The context to be considered includes Clause 46 of the 2021 Agreement (Rights of Private Practice Arrangements for Specialist and Senior Specialists), set out in full at Attachment 1, and Clause 47 of the 2017 Agreement (Rights of Private Practice Arrangements for Specialist and Senior Specialists) set out in full in Attachment 2. [84] In comparison between the two versions of the clause: Clause 46.1 of the 2021 Agreement varies from that within Clause 47.1 the 2017 Agreement; Clause 46.2 of the 2021 Agreement is a new term; Clause 46.3 of the 2021 Agreement is in the same terms as Clause 47.2 of the 2017 Agreement; Clause 46.4 of the 2021 Agreement is in the same terms as Clause 47.3 of the 2017 Agreement; Clauses 46.5.1 – 46.5.3 of the 2021 Agreement are in similar terms as Clauses 47.4 of the 2017 Agreement. A change has been made to a cross-reference within the enterprise agreement since the lettering of the cross-referenced annex has changed. A change has also been made by stating that payment will be a percentage of “Scheme Pay”, defined separately in Clause 46.8 but in terms consistent with the payment formula used in the 2017 Agreement. Clause 46.5.4 of the 2021 Agreement is a new term, dealing with the Pathology Scheme; Clause 46.5.5 of the 2021 Agreement is a new term, dealing with the Radiology Scheme; Clause 46.5.6, 46.6 and 46.7 of the 2021 Agreement are new terms, dealing with the Radiology Oncology Scheme; Clauses 46.8 of the 2021 Agreement is a new term, and is a definition for the purposes of payment consistent with the payment formula used in the 2017 Agreement. 49 Exhibit AB 2, Outline of Submissions filed by Mr Wilson, 28 February 2020, 50 Exhibit ACT 4, Applicant’s Consolidated Outline of Submissions, 27 April 2020, [36]. [2020] FWC 2745 35 Clauses 46.9 – 46.13 of the 2021 Agreement are new terms; Clause 46.14 of the 2021 Agreement varies from that within Clause 47.5 of the 2017 Agreement. [85] Two matters need identification in this regard. [86] The first relates to whether what was explained to employees is accurate and sufficient to allow a finding that all reasonable steps were taken to ensure “the terms of the agreement, and the effect of those terms, [were] explained to the relevant employees” and that the explanation was “provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees”. What was demonstrably explained was that the private practice provisions in the 2017 Agreement were proposed to be changed to “include the details of the Pathology Scheme and the Radiology Scheme” and the Radiation Oncology Scheme “ensuring a greater degree of clarity and consistency of entitlement for all staff”. These three new schemes “have simply been incorporated into the Agreement as is”. There is nothing before me that would allow a proper testing of either form of explanation. While I note that absence of evidence, if the statements are factually accurate then not much more in the way of explanation may be required. However, the fact that Drs Ashton and Berry asked during bargaining, repeatedly it seems, “what the terms of the “Radiology Scheme” within the meaning of the 2017 EA (and all earlier instruments back to the 2005 CA) were” indicates a topic that likely should reasonably have been addressed in some detail in the explanations to employees. That it was not is an indicator that not all reasonable steps were taken to explain the terms of the 2021 Agreement and the effect of those terms. [87] The ACT criticised the question posed by Drs Ashton and Berry in the context of their good faith bargaining objection, arguing it was opaque and may not even be capable of answer. Respectfully, it is not an opaque question. It may have been troublesome, hard to answer, or against the interests of the ACT to answer, but it is not opaque. The question asked was plainly a request to understand the meaning of the differences between the language of the 2017 Agreement which provides “47.4 The available schemes are: … (e) Retention of Radiology Scheme” and that which was proposed in the 2021 Agreement. The question, perhaps not as elegantly framed as one may like and unnecessarily complicated with its reference to “all earlier instruments back to the 2005 CA”, was an invitation for the employer to explain, cogently and persuasively, the differences if any, between the documents. [88] Bearing in mind that the purpose of s.180(5) is to enable employees to cast an informed vote, the fact there was a controversy of some degree before bargaining concluded on the subject of inclusion of the Radiology Scheme, means that a reasonable step for the employer to take would have been to ensure that those parts of Clause 46 dealing with the Radiology Scheme, and the effect of the terms, were comprehensively explained. If there was no change at all, it would have been reasonable for the employer to explain that such was the case, and perhaps provide a link to the predecessor scheme document so that employees could satisfy themselves there was no change other than inclusion of the scheme in the proposed [2020] FWC 2745 36 enterprise agreement. If there were changes, whether minor or major, controversial or not, it would have been reasonable to summarise the changes. In either case, inclusion of the scheme in an enterprise agreement must mean something or must be for satisfaction of some motive held by someone. It would have been a reasonable step for the employer to explain why the change was proposed and what was the effect of the change. The obligation of the employer to explain the effect of the term is acute in this situation in which it is contended that all that has happened is that a pre-existing scheme has been included or incorporated “as is”. In the absence of an obvious reason or purpose for the change, if the scheme has merely been incorporated “as is”, employees may well ask what is the effect of that incorporation? [89] If there had been evidence before me about the precise terms of the pre-existing Radiology Scheme and the other newly included schemes it may have been possible to test the concerns expressed above. Satisfaction that there was no change, or only very minor change may then reasonably lead to the exercise of the discretion in s.188(2). The absence of comparative evidence means I am unable to be satisfied such failures of explanation as there may have been were minor procedural or technical errors or that the employees covered by the agreement were not likely to have been disadvantaged by the errors.51 [90] The second matter to be considered pertinent to the explanation given about the changes made to private practice rights is that a comparison between the clauses in the 2017 and 2021 Agreements indicates that the change is wider than explained. What has changed between the two Agreements is more than inclusion of the details of the Pathology Scheme, the Radiology Scheme and the Radiation Oncology Scheme and the alterations made to what is now Clause 46 suggest that what has been done is more than incorporation of the Pathology, Radiology and Radiation Oncology Schemes “as is”. In this regard the following changes may be noted: Clause 46.1 – Whereas the current 2017 Agreement clause commits to the employer providing “appropriate support to maximise billing” of private patients, the commitment in the 2021 Agreement is “to ensure that private patients are promptly billed, and outstanding accounts are recovered”. The term appears to apply to all specialists and not just those participating in the newly included Pathology, Radiology and Radiation Oncology Schemes. The difference in the commitment’s meaning does not appear to have been explained to employees. Since the change appears on the language of the clause to be minor, the Commission could, with appropriate submissions on the subject, be persuaded that a failure to explain the change is a minor procedural or technical error for which a discretion could be exercised in accordance with s.188(2). Clause 46.2 – The term is new and provides for an election by Specialists and Senior Specialists to participate in one of the Schemes, but generally only one, and only in the speciality in which they are employed. If a specialist participates in more than one scheme, there is a provision for a fractional participation, the aggregate of which is “their employed FTE”. The term appears to apply to all 51 Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318. [2020] FWC 2745 37 specialists and not just those participating in the newly included Pathology, Radiology and Radiation Oncology Schemes. While the term or the effect of the term does not appear to have been explained to employees, in some regards the provision could be regarded a statement of the obvious, in which case the Commission could, with appropriate submissions on the subject, be persuaded that a failure to explain the change is a minor procedural or technical error for which a discretion could be exercised in accordance with s.188(2). Clause 46.8 – The term is new and defines the meaning of “Scheme Pay”, a term used in Clause 46.5, applying to each of the Schemes. The definition appears to have been introduced to standardise and perhaps shorten the references to payment entitlement. To the extent that these are in fact the motivators for the change it could be accepted that a failure to explain the change is a minor procedural or technical error for which a discretion could be exercised in accordance with s.188(2). Clause 46.9 – The term is new and applies not only to the Pathology and Radiology Schemes, but also to specialists electing to work under Scheme A. It prescribes that a fixed allowance is paid during periods of leave taken, but not upon payments at the end of employment. The term or the effect of the term does not appear to have been explained to employees, however likely should have been. The term both establishes a new right and limits the same and because of that is not likely to be regarded as a minor or machinery change to the enterprise agreement. An argument that the right is merely a codification of what may have been in the pre- agreement arrangements for the now included Pathology and Radiology Schemes would not be persuasive since the term applies to a broader group of employees. Clause 46.10 – The term provides that no payments made under any of the Schemes are salary for superannuation purposes. The term appears to apply to all specialists and not just those participating in the newly included Pathology, Radiology and Radiation Oncology Schemes. The term or the effect of the term does not appear to have been explained to employees. The term establishes a limit on superannuation payments and because of that is not likely to be regarded as a minor or machinery change to the enterprise agreement. An argument that the term is merely a codification of what may have been in the pre-agreement arrangements for the now included Pathology, Radiology and Radiation Oncology Schemes would not be persuasive since the term applies to a broader group of employees. Clauses 46.11 – 46.13 – These terms deal with the subject of “inadvertent disadvantage”, which appears to be the situation in which a private practice rights scheme participant experiences a disadvantage because of the implementation of other parts of Clause 46. The terms commit the parties to discussion about possible solutions or access to the enterprise agreement’s dispute resolution term (Clause 125). The terms appear to apply to all specialists and not just those participating in the newly included Pathology, Radiology and Radiation Oncology Schemes. The terms or the effect of the terms do not appear to have been explained to employees. [2020] FWC 2745 38 While ostensibly establishing a new right, what is not clear to me is whether the inclusion of the relevant schemes with their access to these rights of dispute discussion and resolution may be a change to employees’ existing rights. It is possible the change is minor; just as equally it is possible that it is not. Clause 46.14 – This term deals with the subject of a review of “facility fees” to be charged to private practice rights scheme participants and varies from that in the 2017 Agreement by including a commitment that the review will be completed by no later than 30 June 2021. The change is obvious on the face of the clause. Although the variation of the provision was not explained to employees it could be accepted by the Commission that a failure to explain the change is a minor procedural or technical error for which a discretion could be exercised in accordance with s.188(2). [91] It will be seen from the above analysis that some of the changes to the private practice clause are minor or machinery changes. [92] Others though appear to create new rights or limit others. The restriction of the “fixed allowance” in Clause 46.9 to leave taken only and not for payment upon employment ending is potentially a significant change within the agreement (if not a significant change to actual non-agreement payment practices). Similarly, the provision within Clause 46.10 that private practice payments derived from the schemes are not salary for superannuation purposes appears to be a significant change to things provided for within the enterprise agreement. The matters provided for in Clauses 46.11 – 46.13 on the subject of “inadvertent disadvantage” may also be significant changes within the agreement, but are not necessarily so. Each of the terms applies more broadly than just the newly included Pathology, Radiology and Radiation Oncology Schemes. That fact alone means their inclusion does not fit within the explanations given of change to “include the details of the Pathology Scheme and the Radiology Scheme” and the Radiation Oncology Scheme “ensuring a greater degree of clarity and consistency of entitlement for all staff” or that they “have simply been incorporated into the Agreement as is”. The content of the terms themselves could be significant new rights or restrictions. The effect of the incorporation of the terms is not apparent. [93] The failure by an employer to explain certain features of an enterprise agreement or their effect may be the subject of an exercise of discretion by the Commission under s.188(2) accepting that the agreement has nonetheless been genuinely agreed if satisfied both that the failure is a minor procedural or technical error and that the employees covered by the agreement were not likely to be have been disadvantaged by the errors. The purpose and use of s.188(2) was discussed by the Full Bench in the matter of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman).52 In that matter, the Full Bench held that a failure to comply with a procedural requirement will constitute a “procedural error” with a procedural requirement being one which requires an employer to follow a particular process or course of action.53 A procedural error is to be 52 [2019] FWCFB 318. 53 Ibid, [117] (2) – (3). [2020] FWC 2745 39 distinguished from a technical error which includes an obligation to comply strictly with the form and content of an instrument. While a single error may have both procedural and technical components, what constitutes a “minor” error calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. The Full Bench then concluded this about the characterisation and determination of minor errors: “7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first Agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the Agreement is, in effect, a ‘roll over’ Agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.”54 [94] Pertinent to the consideration of s.188(2) and how it relates to the requirement of s.180(5), the same Full Bench in Huntsman55 recorded that the “underlying purpose” of s.180(5) was to “[e]nsure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision” and that the failure to sufficiently do so might disadvantage employees because “[i]n the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote”. More recently the Full Bench, in CFMMEU v Karijini Rail Pty Ltd56 has confirmed that satisfaction about the elements of s.180(5) requires an evaluative approach based on sufficient information: “[57] In arriving at the requisite satisfaction as to Karijini’s compliance with s.180(5) of the Act, the Deputy President was required to evaluate whether in all the circumstances, Karijini has taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees in a manner appropriate, taking into account the particular circumstances and need of the relevant employees. As s.188(1) makes clear, Karijini’s compliance with s.180(5) need only be established to the satisfaction of the decision-maker. Actual compliance with s.180(5) is not a jurisdictional fact. Its objective existence is not a precondition to the Commission’s power to approve the Agreement.57 54 Ibid, [117]. 55 Ibid, [74]. 56 [2020] FWCFB 958. 57 One Key Workforce v CFMMEU [2018] FCAFC 77, (2018) 262 FCR 527 at [103]. [2020] FWC 2745 40 [58] Nevertheless, that the Deputy President reached the requisite state of satisfaction as to, inter alia, compliance with s.180(5) of the Act on material sufficient to enable her to reach the requisite satisfaction, is a condition precedent to the exercise of the power to approve the Agreement. The approval of an agreement absent any evidence, or upon insufficient evidence, about an employer’s compliance with s.180(5) results in the agreement having been approved without authority and so there will be jurisdictional error.58 In reaching the requisite state of satisfaction, there must be material available to the Deputy President to support reaching that state. An evaluative assessment of no or insufficient information in reaching a state of satisfaction is no assessment at all and will not provide a sufficient foundation for being satisfied as to the requisite compliance. [59] Arriving at a state of satisfaction as to whether an employer has complied with the obligations in s.180(5) of the Act depends on the circumstances of the case. The focus of the enquiry involves considering and evaluating the steps taken to comply, and then assessing whether the steps taken were reasonable in the circumstances and whether these were all the reasonable steps that must have been taken in the circumstances.” [95] Confirming Rigforce59 and Ditchfield,60 the Full Bench held that for the Commission to be satisfied of the matters within s.180(5) requires an examination of the content of the explanation and the terms in which they were conveyed61 meaning that what was conveyed to employees ensured they were as fully informed as practicable before they voted so they knew what they were being asked to agree to, and understood how their wages and working conditions might be affected by voting in favour of an agreement.62 An exercise of the Commission’s discretion under s.188(2) is within the limits provided by the section: “[17] It should be noted that the power to rectify minor procedural or technical errors in s 188(2) does not apply to all matters in ss 180, 186 and 188. Section 188(2) has no application in circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a general sense, as might arise in considering s 188(1)(c). The test is different in nature to other requirements in the Act, which provide for a discretion, or a means of rectifying any defects. Section 201 for example requires an agreement to contain a consultation and flexibility clause, and provides that if it does not or is not in the appropriate form then a model clause applies, and the defect does not prevent approval. Section 188(2) provides a limited discretion to deal with some ‘minor procedural or technical errors’ relating to the procedural requirements for agreements, and s 190 provides the limited circumstances in which undertakings may satisfy the Commission that particular concerns are met, namely where the undertaking is not likely to cause financial detriment to any employee 58 Ibid at [117]. 59 AWU v Rigforce Pty Ltd [2019] FWCFB 6960, [35] – [36]. 60 CFMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022, [71]-[72]. 61 Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd, [2020] FWCFB 958, [61]. 62 Ibid, [62]. [2020] FWC 2745 41 covered by the agreement or result in substantial changes to the agreement. A more general discretion is contained in some provisions of the Act, such as s 387, or the public interest test in s 604.”63 (reference omitted) [96] In this case there is insufficient material before me to be satisfied of the elements in s.180(5). I have the explanations referred to above, however there is nothing of substance before me about the pre-existing Pathology, Radiology and Radiation Oncology Schemes or the effect of their inclusion in the 2021 Agreement. Consequently, I am unable to evaluate whether what has been explained is actually correct; there is no means before me of determining that what has been included is actually “as is”. I also have insufficient information to evaluate whether the terms within the agreement as they apply to a broader range of schemes, or the effect of those terms, are significant or not. Those matters mean that I cannot with any precision establish whether any failure to explain changes was “minor”. The same lack of material means I am unable to meaningfully evaluate the requirement in s.188(2)(b) that the Commission’s discretion be exercised when satisfied the employees covered by the agreement were not likely to have been disadvantaged by the error. [97] As a result of these considerations I am unable to be satisfied the 2021 Agreement was genuinely agreed. BREACH OF THE GOOD FAITH BARGAINING REQUIREMENTS IN S.187(2) [98] Drs Ashton and Berry submitted that in the course of bargaining the ACT did not address their enquiries about the meaning of the terms of the Radiology Scheme. On their behalf Mr Wilson submitted that he “asked the Employer, with reference to section 228 and in terms of “disclosing relevant information”, to state what the terms of the “Radiology Scheme” within the meaning of the 2017 EA (and all earlier instruments back to the 2005 CA) were, and why it was contended that whatever was stated was the case. The Employer did not answer that request for disclosure.”64 This he contends is “a breach of section 228(1)(b) by the Employer”.65 [99] The ACT submitted there was no merit to the complaint, since there is: “… no scope order is in operation in relation to the Agreement. It follows that the pre- approval requirement prescribed by s 187(2) is not enlivened. Mr Wilson does not otherwise articulate how the alleged "breach of section 228(1 )(b) by the Employer" engages with a pre-approval requirement.”66 63 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v e2o Pty Ltd [2019] FWCFB 4023. 64 Ibid, [23]. 65 Ibid, [24]. 66 Applicant’s Consolidated Outline of Submissions, [34]. [2020] FWC 2745 42 [100] A contention of this type at this stage of proceedings, involving the Commission’s consideration of whether an enterprise agreement should be approved, relates to the provisions of s.187(2), which provides: “Requirement that approval not be inconsistent with good faith bargaining etc. (2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.” (underlining added) [101] The ACT is correct. Consideration of the matter raised by Drs Ashton and Berry may only be within the limited context provided for by the Act. Drs Ashton and Berry did not argue there was a scope order in operation for the work encompassed by the 2021 Agreement and provided no evidence that there is one. Since there is no scope order, I do not consider any further their contentions in relation to this matter. COMMISSION’S INITIAL CONCERNS [102] In the early stages of consideration of the application for approval I caused correspondence to be issued to the parties setting out my concerns on matters of pre-approval, the NES and the BOOT. The Applicant responded to my concerns with submissions and undertakings. The undertakings were supported by the Australian Salaried Medical Officers Federation and the Australian Medical Association and are in this form: “1. I undertake on behalf of the ACT Government to not apply Clause 82.28 of the Agreement which provides that the head of service must not grant personal leave for an absence caused by the misconduct of the employee. 2. I further undertake on behalf of the ACT Government to not apply Clause 51 of the Agreement which provides that employees who are assessed as eligible to receive a supported wage under subclause 51.2 are to be paid the percentage of pay that corresponds to the employee's assessed productive capacity and the class of work . which the person is performing.” [103] The Commission’s correspondence set out a concern with Annexure B to the Agreement, that B3.6 could potentially function to allow parties to opt out of the Agreement terms contrary to s.194(ba) of the FW Act. Further, I held a concern that Clauses 52.9 and 63.15 may contain unpermitted deductions and be contrary to s.324 of the FW Act. As a result of the submissions provided by the Applicant on these points, I no longer hold the concerns. The matters raised by the Commission and responses received included the following: The Commission held a concern that Clause 3.6 in Annexure B allowing a declaration to be made about an attraction and retention bonus may be an “opt out” provision. In response, the ACT clarified that the clause “instead allows an [2020] FWC 2745 43 employee and the employer to agree to vary or substitute a specific employment condition to provide other more favourable terms and conditions for the benefit of the employee”.67 The Commission held a concern that Clauses 52.9 and 63.15 may allow unauthorised deductions to be made from payments. In response the ACT submitted that any arrangements under the clauses cannot be characterised as unauthorised deductions and instead are part of a voluntary scheme. [104] The Commission was also concerned that several terms of the Agreement may be contrary to the NES, which have each been satisfied through submissions or an undertaking. [105] An initial concern about the effect of Clause 82.3 dealing with personal leave appearing to place a restriction on casual employees, the ACT clarified that casual employees requiring personal leave would simply make themselves unavailable. A concern about the availability of personal leave for temporary employees was resolved with the clarification from the ACT that the particular clause needed to be read in conjunction with another indicating that the entitlement was in addition to that provided for by the NES. A restriction on personal leave for reason of an absence caused by the misconduct of an employee was removed through the provision of the undertaking set out above. [106] I also held a concern that supported wage system employees may not be better off overall under the Agreement. In response, the Applicant provided an undertaking to remove Clause 51.1 from operation. As a result of the provision of the undertaking set out above, I no longer hold this as a concern. [107] The concerns raised by the Commission on the matters of Pre-approval, the NES, and the BOOT were resolved to the Commission satisfaction. CONCLUSION [108] In conclusion, the identified NES and BOOT concerns expressed as concerns by the Commission have been resolved, including where appropriate by the acceptance of an undertaking provided by the ACT. For the reasons indicated, the agreement is a single- enterprise agreement. No impediment to approval arises from s.187(2). [109] Resolution of those matters though is insufficient for approval of the Agreement. [110] Because I am not satisfied the 2021 Agreement has been genuinely agreed by the employees covered, I am unable to approve it and the application must be dismissed. An order to that effect is published at the same time as this decision. [111] Finally, I must indicate that I am not satisfied a proper explanation has been given to me about the status of the two employers covered by the 2021 Agreement. While I accept the 67 Email from ACT Government, 10 February 2020. [2020] FWC 2745 44 ACT’s submission that the 2021 Agreement is a single-enterprise agreement made by two single interest employers, the ACT and Calvary, I have no conception of the role of Calvary in bargaining, and note that it has not signed the enterprise agreement or the undertakings given by the ACT. [112] An application for an enterprise agreement must be accompanied by a signed copy of the agreement (s.185(2)) and the Regulations may prescribe requirements relating to the signing of enterprise agreements (s.185(5)). Regulation 2.06A(2) requires the agreement to be signed by “the employer covered by the agreement”. The agreement submitted to the Commission is not signed by a Calvary representative with apparent authority to sign the agreement on its behalf and does not even have a place for a Calvary signatory. Perhaps the person who signed on behalf of the ACT had authority to sign on behalf of Calvary, however such is not stated, and it is not clear to me how that could be the case. I also do not have a copy of the Notice of Employee Representational Rights provided by Calvary to its employees. While I have made no findings on the subject because of an absence of available material a question remains as to whether Calvary has complied with the requirements in the FW Act’s Part 2 – 4, Divisions 3 and 4. [113] Clause 6.6 of the 2021 Agreement establishes there are likely Calvary employees working under the agreement. Perhaps despite this Calvary does not actually employ anyone under the 2021 Agreement; but again, that is not clear to me. [114] An undertaking given to the Commission pursuant to s.190 must be signed by “each employer who gives the undertaking” (r.2.07). The undertakings referred to above were given only by “the ACT Government” and are not stated to be given by Calvary as well. The nature of the undertakings given is such that it would not be possible for me to accept them only in relation to the ACT and its employees and not to Calvary and its employees. [115] It appears to me not only from these issues, but the matters of explanation which have ultimately led to the 2021 Agreement not being approved, that greater care and attention could have been paid in ensuring accurate coverage, explanation and signature of the Agreement. It would be in the interests of those covered by a future version of the 2021 Agreement to ensure this objective was met. COMMISSIONER [2020] FWC 2745 45 Printed by authority of the Commonwealth Government Printer <PR719653> Appearances Mr A. Pollock for the ACT Mr J. Wilson for Drs Berry and Ashton Mr S. Ross for the Australian Salaried Medical Officers Federation ACT Branch Mr T. Chase individual bargaining representative from the Australian Medical Association ACT Branch Hearing Details 2020. Melbourne (via telephone); 28 April. [2020] FWC 2745 46 ATTACHMENT 1 – 2021 AGREEMENT 46. RIGHTS OF PRIVATE PRACTICE ARRANGEMENTS FOR SPECIALIST AND SENIOR SPECIALISTS 46.1. The employer, all Specialists and Senior Specialists will ensure that every effort is made to bill private patients. The employer will provide appropriate support as is necessary to ensure that private patients are promptly billed, and outstanding accounts are recovered. 46.2. Subject to the provisions in this clause, Specialists and Senior Specialists may elect to participate in a rights of private practice scheme. Where a Specialist or Senior Specialist is eligible to participate in more than one such scheme, they may choose which scheme to participate in. A Specialist or Senior Specialist is only eligible to participate in the Pathology, Radiology or Radiation Oncology Scheme if they are employed in that speciality. Specialists and Senior Specialists may participate in more than one scheme on a fractional basis, but the total must not exceed their employed FTE. 46.3. New Specialists and Senior Specialists must elect to commence on one of the schemes outlined at subclause 46.5 below. Specialists and Senior Specialists should only remain on Scheme A where the nature of their discipline or agreed work arrangements make it difficult to bill private patients. 46.4. Specialists and Senior Specialists may move between schemes only with the agreement of the head of service, and subject to an assessment of the billing undertaken by the employee. Where this decision comes into dispute, an independent committee comprising one union nominee, one management nominee and an agreed third person, will be established to review the decision. This will be the only avenue of dispute resolution in these circumstances. 46.5. The available schemes are: 46.5.1. Scheme A – Staff Specialist receives 100% of base pay as in Annex A (prorated for part-time) plus 20% allowance calculated on Scheme Pay. Earnings up to equivalent of 10% of Scheme Pay incur 100% facility fee. Earnings greater than 10% and up to 30% of Scheme Pay to be split into 50% facility fee and 50% bonus. Earnings greater than 30% incur 100% facility fee; 46.5.2. Scheme B – Staff Specialist receives 100% of base pay as in Annex A (prorated for part-time) plus up to 50% of Scheme Pay as a bonus on earnings from private practice billings. A facility fee calculated in accordance with Annex E is deducted before bonus payments are made to the staff Specialist; 46.5.3. Scheme C – Staff Specialist receives 75% of base pay as in Annex A (prorated for part-time), plus up to 133.33% of Scheme Pay as a bonus on earnings from [2020] FWC 2745 47 private practice billings. A facility fee calculated in accordance with Annex E is deducted before bonus payments are made to the staff Specialist; 46.5.4. Pathology Scheme - Staff Specialist receives 100% of base pay as in Annex A (prorated for part-time) plus 75% allowance in lieu calculated on Scheme Pay. All earnings incur 100% facility fee in accordance with Annex E, except that 5% of Scheme Pay per Specialist will be contributed to the Private Practice Fund quarterly. No change can be made to the Pathology scheme without the agreement of at least 50% of the Staff Specialists participating in the Scheme. 46.5.5. Radiology Scheme -- Staff Specialist receives 100% of base pay as in annex A (prorated for part-time) plus an allowance as shown in Table 1 below, calculated on Scheme Pay plus payments under clause 44. All earnings incur 100% facility fee in accordance with Annex E, except that 2.5% of all facility fees incurred under this scheme in relation to all participating staff up to a maximum of $73,125 p.a. will be contributed to the Private Practice Fund. No change can be made to the Radiology Scheme without the agreement of at least 50% of the Staff Specialists participating in the Scheme. Note: $73,125 p.a. is the maximum amount that will be contributed to the Private Practice Fund from facility fees incurred by all radiologists. It is not a reference to a maximum amount per individual radiologist. Table 1 Radiology Scheme allowance A Radiologist receives: Private Practice Entitlement (% of Scheme Pay plus Clause 44 payments) Base pay 127.17 Base pay plus 5% Onerous Allowance 126.22 Base pay plus 10% Onerous Allowance 125.27 Base pay plus Tier 1 Management Allowance 125.04 46.5.6. Specialist Radiation Oncology Scheme - as outlined at subclauses 46.5.6.1 - 46.5.6.11 46.5.6.1. A Radiation Oncologist may elect to participate in Scheme A, B, or C. 46.5.6.2. Sub clauses 46.5.6.3 to 46.5.6.10 apply where a Radiation Oncologist elects under subclause 46.5.6.1 to participate in Scheme B or Scheme C. 46.5.6.3. The Radiation Oncologist will receive: [2020] FWC 2745 48 46.5.6.3.1. A bonus calculated in accordance with the scheme elected by the Radiation Oncologist as specified in either clause 46.5.2 or 46.5.3 46.5.6.3.2. An additional private practice payment amount equivalent to 35% of their private practice billings received by CHS that are in excess of the ‘annual revenue threshold’ in a financial year. 46.5.6.4. A facility fee of 20% is deducted before any bonus payments are made to the Staff Specialist; 46.5.6.5. Subject to subclause 46.5.6.6, the ‘annual revenue threshold’ is $370,000 for a full time Radiation Oncologist, pro rata for a part- time Radiation Oncologist. Examples: (1) A Radiation Oncologist is employed part-time at 0.7 FTE. Their annual revenue threshold is $259,000 (0.7 x $370,000). (2) A Radiation Oncologist commences employment on 1 January 2019. Pro rata to 30 June 2019, the financial year is 6 months. Their annual revenue threshold for that period to 30 June 2019 is $185,000 (0.5 x $370,000). 46.5.6.6. For individual Radiation Oncologists, the Radiation Oncology Administration Committee may adjust the ‘annual revenue threshold’ to account for official administrative duties performed by the Specialist. For example, the annual revenue threshold of a position is reduced by a proportion of 0.2 FTE by the committee. Their annual revenue threshold is reduced by $74,000 (0.2 x $370,000). 46.5.6.7. Subclauses 46.5.6.8 and 46.5.6.9 apply where a Radiation Oncologist elects to participate in Scheme C. 46.5.6.8. A Radiation Oncologist will be guaranteed the maximum Scheme C payment: 46.5.6.8.1. for the first 12 months of their employment; and 46.5.6.8.2. in any financial year in which they have returned from extended leave where it is not fully paid as per standard calculation process. 46.5.6.9. If a Radiation Oncologist receives a Scheme C bonus less than the maximum entitlement under Scheme C for any reason, the [2020] FWC 2745 49 Radiation Oncology Administration Committee may approve a payment to the Staff Specialist of an amount equal to the difference. 46.5.6.10. Payments under clauses 46.5.6.3.2 and 46.5.6.8 (35% and guaranteed Scheme C) will be paid from the Radiation Oncology Sub- Fund and are subject to available funds. 46.5.6.11. The terms of the Radiation Oncology Scheme may only be varied or terminated by agreement of a Radiation Oncologist majority. 46.6. A Radiation Oncologist is entitled to be paid a Regional Service Development Allowance at the following rates on each occasion that the Radiation Oncologist is required to provide radiation oncology services at a regional outreach clinic referred to below. These payments will be drawn from the Radiation Oncology Sub-Fund. 46.6.1. Bega $3,580 46.6.2. Moruya $3,580 46.6.3. Goulburn $2,260 46.6.4. Cooma $2,260 46.6.5. Young $2,620 46.6.6. The allowance will be adjusted in accordance with clause 55, with the first such adjustment applying from the first increase in the rates of pay in Annex A occuriring on or after the date of commencement of this Agreement. 46.7. In this clause 46: 46.7.1. a Radiation Oncologist is a Specialist or Senior Specialist employed as a radiation oncologist; 46.7.2. a Radiation Oncologist majority is more than 50% of the full time or part- time Radiation Oncologists employed by the Australian Capital Territory at The Canberra Hospital employed at the relevant time. 46.7.3. Radiation Oncology Administration Committee has the same meaning as in the trust deed governing the Radiation Oncology Sub-Fund. 46.8. In this clause 46, Scheme Pay means base pay as in Annex A (prorated for part-time) plus any allowances paid under clauses 42 and 58. Leave and Superannuation 46.9. The fixed allowance under Scheme A, the Pathology Scheme and the Radiology Scheme will be paid during all periods of paid leave taken. However, it is not paid on accrued leave paid out on resignation, retirement, leave paid in-lieu under clause 85 (this does not include leave taken under 85.33.3), leave purchased under clause 87, or leave cashed out under clause 88. 46.10. No payments under any of the Schemes (including any fixed allowance) are salary for superannuation purposes. [2020] FWC 2745 50 Inadvertent Disadvantage 46.11. In this Clause, sub clauses 46.5.4 through to 46.10 are intended to codify the scheme arrangements in place as at 31 December 2018 for the classifications referred to therein. 46.12. Where the head of service and the union(s) agree that an employee(s) has experienced a demonstrable inadvertent disadvantage as a result of the implementation of sub clauses 46.5.4 to 46.10, Canberra Health Services will discuss possible solutions with the affected employee(s) and their representatives. 46.13. In the event that agreement between the head of service and the unions is not achieved, a reference to clause 125 may be made by either party. Review of Facility Fees 46.14. A review of facility fees currently charged in relation to rights of private practice will be undertaken during the life of the agreement, in accordance with Terms of Reference to be agreed. This review will be completed by no later than 30 June 2021. [2020] FWC 2745 51 ATTACHMENT 2 – 2017 AGREEMENT 47. RIGHTS OF PRIVATE PRACTICE ARRANGEMENTS FOR SPECIALIST AND SENIOR SPECIALISTS 47.1 The Directorate, all Specialists and Senior Specialists will ensure that every effort is made to bill private patients. The employer will provide appropriate support to maximise billing. 47.2 New Specialists and Senior Specialists must elect to commence on one of either Scheme A, B or C as outlined at subclause 47.4 below. Specialists and Senior Specialists should only remain on Scheme A where the nature of their discipline or agreed work arrangements make it difficult to bill private patients. 47.3 Specialists and Senior Specialists may move between schemes only with the agreement of the head of service, and subject to an assessment of the billing undertaken by the employee. Where this decision comes into dispute, an independent committee comprising one union nominee, one management nominee and an agreed third person, will be established to review the decision. This will be the only avenue of dispute resolution in these circumstances. 47.4 The available schemes are: (a) Scheme A – staff specialist receives 100% of base pay (prorated for part-time) plus 20% allowance in lieu calculated on base pay plus applicable allowances. Earnings up to equivalent of 10% of pay incur 100% facility fee. Earnings greater than 10% and up to 30% of pay to be split into 50% facility fee and 50% bonus. Earnings greater than 30% incur 100% facility fee; (b) Scheme B – staff specialist receives 100% of base pay (prorated for part-time) plus up to 50% of pay as a bonus on earnings from private practice billings. A facility fee calculated in accordance with Annex F is deducted before bonus payments are made to the staff specialist; (c) Scheme C – staff specialist receives 75% of base pay (prorated for part-time), plus up to 133.33% of pay as a bonus on earnings from private practice billings. A facility fee calculated in accordance with Annex F is deducted before bonus payments are made to the staff specialist. (d) Retention of Pathology Scheme; (e) Retention of Radiology Scheme. [2020] FWC 2745 52 Review of Facility Fees 47.5 A review of facility fees currently charged in relation to rights of private practice will be undertaken during the life of the agreement, in accordance with Terms of Reference to be agreed. 47.6 The facility fees set down in Schedule F may be amended during the life of the agreement to reflect the agreed findings of that review. 47.7 All interested parties will be invited to participate in the review, and the agreement of the unions under subclause 47.6 will be required for the review’s findings to be implemented.