1 Fair Work Act 2009 s.234 - Application for an intractable bargaining declaration Australian Salaried Medical Officers Federation v Australian Capital Territory as represented by Canberra Health Services (B2024/1319) DEPUTY PRESIDENT DEAN CANBERRA, 12 NOVEMBER 2024 Application for an intractable bargaining declaration – declaration made [1] The Australian Salaried Medical Officers Federation (ASMOF) has made an application for an intractable bargaining declaration under s.234 of the Fair Work Act 2009 in relation to a proposed enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2023-2026 (the Agreement). [2] The Australian Capital Territory as represented by Canberra Health Services (Respondent) initially opposed the application at a time when the Respondent was in the midst of an election and was in a caretaker period. However, during a further conference held today, the Respondent advised the Commission that the application is no longer opposed. [3] For the reasons set out below, I have decided that the declaration sought should be made. Relevant legislation [4] Section 235 of the Act sets out when the Commission may make an intractable bargaining declaration. It states: “235 When the FWC may make an intractable bargaining declaration Intractable bargaining declaration (1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if: (a) an application for the declaration has been made; and (b) the FWC is satisfied of the matters set out in subsection (2); and (c) it is after the end of the minimum bargaining period (see subsection (5)). [2024] FWC 3117 DECISION [2024] FWC 3117 2 Matters of which the FWC must be satisfied before making an intractable bargaining declaration (2) The FWC must be satisfied that: (a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC’s processes to deal with the dispute; and (b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and (c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement. What declaration must specify (3) The declaration must specify: (a) the date it is made; and (b) the proposed enterprise agreement to which it relates; and (c) any other matter prescribed by the procedural rules. Operation of declaration (4) The declaration: (a) comes into operation on the day it is made; and (b) ceases to be in operation when each employer specified in the determination is covered by an enterprise agreement or a workplace determination. End of the minimum bargaining period (5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is: (a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following: (i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements; [2024] FWC 3117 3 (ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or (b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6). (6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is: (a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or (b) otherwise—the notification time for the proposed agreement.” [5] The test of whether the Commission is satisfied in relation to the matters outlined in s.235(2) is an objective one, and the subjective views of the parties is not determinative. Furthermore, as considered by the Full Bench in the decision of United Firefighters’ Union of Australia v Fire Rescue Victoria1, the process by which the Commission reaches a state of satisfaction in regard to a prescribed matter outlined under s.235(2): “… involves the making of an evaluative judgement of a discretionary nature. The exercise of discretion involved will be wider where the prescribed matter is one of ‘opinion or policy or taste (as it the case with paragraphs (b) and (c) of s.235(2) rather than one of ‘objective fact’ (paragraph (a)).” Consideration [6] I now turn to consider the matters required by s.235 of the Act. Has an application for the declaration been made? – s.235(1)(a) [7] Section 234(1) of the Act states that a bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the Commission for an intractable bargaining declaration under s.235 of the Act. [8] I am satisfied and there is no dispute that ASMOF has made a valid application in that it is a bargaining representative and the application is not for a greenfields agreement. Is it after the end of the minimum bargaining period? – s.235(1)(c) [9] There is no dispute and I find that that the application was made after the end of the minimum bargaining period for the purposes of s.235(1)(c). Has the FWC dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC’s processes to deal with the dispute? – s.235(2)(a) [2024] FWC 3117 4 [10] The Applicant filed two dispute notifications under s.240 of the Act, the first on 25 January 2024 and the second on 30 July 2024. Seven conferences have been conducted by the Commission in relation to the s.240 applications. [11] ASMOF fully participated in each of these conferences, and I am satisfied that ASMOF has genuinely tried to reach an agreement with the Respondent. Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? – s.235(2)(b) [12] In its application, ASMOF set out in detail the grounds on which it contended that there was no reasonable prospect of an agreement being reached with the Respondent. Those grounds were not disputed by the Respondent, and I accept those grounds to be an accurate reflection of the background and the negotiations up to the date of this application. Additionally, the Respondent confirmed orally today that further discussions had occurred between ASMOF and the Respondent and no agreement had been reached. [13] Briefly, bargaining for the Agreement commenced in March 2022. There have been more than 30 meetings of the parties for the purposes of negotiating the ‘core’ components of the Agreement, plus approximately 30 further meetings of the parties for the purpose of negotiating the medical practitioner specific components. There has also been an unsuccessful ballot of relevant employees in respect of the Agreement, with 86% voting against the Agreement. [14] As a result, I am satisfied that there is no reasonable prospect of an agreement being reached unless the Commission makes an intractable bargaining declaration. Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? – s.235(2)(c) [15] ASMOF and the Australian Medical Association, both being bargaining representatives, support the making of the declaration. The Respondent does not oppose the making of the declaration. [16] In all the circumstances, I am satisfied that it is reasonable for the Commission to make an intractable bargaining declaration. Conclusion [17] As the requirements of s.235(1) of the Act have been met, and having been satisfied of the matters in ss.235(2), I will exercise my discretion to make an intractable bargaining declaration in relation to the Agreement. [2024] FWC 3117 5 [18] In accordance with s.235(4) of the Act, the declaration will come into effect on 12 November 2024. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR781163> 1 [2023] FWCFB 180 at [27].